IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 18291 of 1999(C)
1. M.MOIDEEN
... Petitioner
Vs
1. THE K.S.E.BOARD
... Respondent
For Petitioner :SRI.THOMAS ANTONY
For Respondent :SRI.R.K.VENU NAYAR, SC, KSEB
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :17/11/2008
O R D E R
S.SIRI JAGAN, J.
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O.P.No.18291 of 1999
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Dated this the 17th day of November, 2008
J U D G M E N T
The 1st petitioner joined service of the Kerala State
Electricity Board on 15.12.1962 as Welder Grade II in the
Sabarigiri Project Dam Division, at Pamba. Thereafter, he was
transferred to Vadasserikkara in the same Project. While he was
working at Vadasserikkara, he was promoted as Welder Grade I
on 15.5.1974, which promotion was regularised in June, 1975.
The 1st petitioner applied for leave without allowances for five
years from 14.8.1981 for employment abroad, apparently.
However, in September 1983, he wanted to cancel the unavailed
portion of the leave and join duty. Accordingly, he went to
Vadasserikkara office from where he understood that the office at
Vadasserikkara was closed down and it was shifted to Pallam.
When the 1st petitioner reported at Pallam he was not allowed to
join duty on the ground that the service book of the petitioner is
not traceable. He states that he was asked to report at
Thiruvananthapuram. Thereafter, on the advice of his friends, he
applied for leave for the period from 14.8.1981 to 31.1.1997
also, on which date his superannuation date fell. The same was
not considered. The 1st petitioner filed Ext.P4 application for
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regularisation of leave for the period from 14.8.1981 till
31.1.1997. Since nothing was done on Ext.P4, the 1st petitioner
filed O.P.No.22288/1997, in which Ext.P4 was directed to be
considered and disposed of. Since the same was not done, the 1st
petitioner filed CCC No.435/1998 in which it was reported that
orders were passed on 6.10.1998. Thereafter, Ext.P5 order
dated 6.10.1998 was supplied to the 1st petitioner, wherein his
claim was rejected on the ground that he was unauthorisedly
absent for the period from 14.8.1981 to 31.1.1997. The 1st
petitioner’s representation for review of Ext.P5 order was also not
considered. Thereafter, he sent Ext.P7 advocate notice to the
Secretary of the KSEB, wherein it was stated that he, on the
information received from his trade union that his service records
have been traced, went to the Engineers Office at Seethathode,
where he saw his service records. By Ext.P8 notice, he was
directed to contact the office of the Executive Engineer,
Seethathode to regularise his leave applications. In spite of all
this, by Ext.P9 dated 18.6.1999, the 1st petitioner was informed
that the absence of the petitioner from duty for the period from
14.8.1981 to 31.1.1997 is treated as unauthorised absence and
his pensionary claims would be settled accordingly. The 1st
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petitioner filed the original petition challenging Exts.P5 and P9
orders.
2. During the pendency of this original petition, the 1st
petitioner died and his legal heirs have come on record as
additional petitioners in the original petition for prosecuting the
original petition further.
3. The petitioners’ contention is that the 1st petitioner is
not at fault for the loss of his service book and service records.
According to the petitioners, the 1st petitioner filed application for
leave at the appropriate time. The 1st petitioner was made to run
from pillar to post for rejoining duty after coming back in 1983.
That being so, the petitioners would contend that 1st petitioner’s
leave for the period from 14.8.1981 till 31.1.1997 should be
regularized and pensionary benefits of the 1st petitioner should be
settled accordingly.
4. Although no counter affidavit has been filed, the
learned Standing Counsel for the Electricity Board, relying on
Ext.P4 order would try to support Exts.P5 and P9. According to
the standing counsel, the 1st petitioner himself admits in the
original petition that he went on leave without allowances,
without getting the leave sanctioned. It is pointed out that in
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paragraph 3 of the original petition the averment of the 1st
petitioner was that after the submission of Ext.P3 leave
application, the 1st petitioner was told that his leave application
would be sanctioned and in anticipation that the leave would be
sanctioned, the 1st petitioner availed of leave from 14.8.1981 to
13.8.1986. The learned Standing Counsel would further point out
that if the 1st petitioner was not allowed to join duty on reporting
for duty at Pallam in 1983, he should have reported before the
Head office at Thiruvananthapuram, which the 1st petitioner has
not cared to do. According to him, the service records of the 1st
petitioner are not traceable, which must have been lost during
the shifting of the office from Vadasserikkara to Pallam. It is
further submitted that as stated in Ext.P9, the 1st petitioner’s
period of service from 14.8.1981 to 31.1.1997 has to be treated
as unauthorized absence and pensionary claims would be settled
accordingly.
5. I have considered the rival contentions in detail.
6. I am of the considered opinion that both parties are at
fault. The Electricity Board is expected to have all records of their
employees at all times. Admittedly, they are not in the
possession of the service records of the 1st petitioner. As such,
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they cannot with any amount of certainty dispute the contentions
of the petitioners either way. However, as pointed out by the
learned Standing Counsel for the Board, the 1st petitioner himself
admits in the original petition that he availed of the leave from
14.8.1981 to 13.8.1986 in anticipation that the leave would be
sanctioned. Although based on Ext.P7 Advocate’s notice, the
petitioners would contend that the 1st petitioner saw the service
records, the petitioners have not been able to produce a copy of
the order sanctioning leave. It is settled law that a person
applying for leave without allowances can avail of the leave only
after the leave is sanctioned. That being so, I am unable to
countenance the contention of the petitioners that the leave
applied for was sanctioned. Further, the petitioners’ case is that
the 1st petitioner came back in September, 1983 and reported for
joining duty. If the 1st petitioner was in fact not allowed to join
duty, it was difficult to believe that for 14 long years till his date
of superannuation, he kept quiet although he claims to have filed
representations, last of which produced before me is of 1987. As
to what happened from 1983 to 1997 nothing is on record. The
1st petitioner himself admits that the 1st petitioner submitted
leave application for the period from 14.8.1981 to 31.1.1997
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also. Whether it is unauthorized absence or leave without
allowances, going by Appendix XIIA of the KSR, the fact is that
both would not be counted for the purpose for retirement
benefits. Therefore, essentially, there is no difference between
treating the 1st petitioner’s absence from 14.8.1981 to 31.1.1997
as unauthorised absence or leave without allowances. Therefore,
I am of opinion that this original petition can be closed with a
direction that the period of service of the 1st petitioner from
14.8.1981 to 31.1.1997 would be treated as not countable for
the purpose of retirement benefits. Excluding that period, the 1st
petitioner’s service would be counted for the purpose of
retirement benefits. All retirement benefits computed accordingly
shall be disbursed to the legal heirs of the 1st petitioner as
expeditiously as possible, at any rate, within two months from
the date of receipt of a certified copy of this judgment.
The original petition is disposed of as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
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S.SIRI JAGAN, J.
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O.P.No.18291 of 1999-C
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J U D G M E N T
17th November, 2008
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