IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3969 of 2006(S)
1. UNION OF INDIA,
... Petitioner
2. THE DIRECTOR,
3. THE ACCOUNTS OFFICER, O/O. THE DIRECTOR,
Vs
1. K. KARUNAKARAN, S/O. LATE KRISHNAN,
... Respondent
For Petitioner :SRI.JOHN VARGHESE, ASSISTANT SG
For Respondent :SRI.P.A.KUMARAN
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :24/03/2009
O R D E R
K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ.
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W.P.(C).No.3969 of 2006 - S
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Dated this the 24th day of March, 2009.
J U D G M E N T
Balakrishnan Nair, J.
Writ petitioners are the respondents in O.A.NO.550/2004.
Applicant is the respondent herein. The brief facts of the case
are the following. The respondent/applicant was a Junior Deck
Hand working under the writ petitioners. He was granted 18
months study leave from 26.12.1994 to 24.6.1996 to undergo a
special course of study, so that he can take the Mate (Fishing
Vessel) Certificate Examination. He also executed a bond in form
7 as provided under Rule 53(4) of the CCS(Leave) Rules. He
completed the course and took the examination. But he could
clear only parts B and C and failed in Part A of the examination.
In other words, he failed to clear the examination in full. In view
of the said position, second petitioner took steps to recover the
salary paid to him during the leave period. Challenging those
proceedings O.A.550/2004 was filed. The Tribunal after hearing
both sides took the view that going by the rules, there is no
stipulation that the applicant should clear the examination.
Completion of the course alone is sufficient as per rules. Based
W.P.(C).No.3969 of 2006 – S
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on that finding the proceedings initiated against the applicant to
recover salary during the leave period were quashed. The
respondents therein aggrieved by the said decision of the CAT,
have filed the present writ petition. The petitioners mainly rely
on Rule 63(1) and Rule 53(4) of the CCS (Leave) Rules in support
of their contentions. Rule 63(1) reads as follows:
“63. Resignation or retirement after study leave or
non-completion of the course of study.
(1) If a Government servant resigns or retires from
service or otherwise quits service without returning to
duty after a period of study leave or within a period of
three years after such return to duty or fails to
complete the course of study and is thus unable to
furnish the certificates as required under sub-rule (5) of
Rule 53 he shall be required to refund –
(i) the actual amount of leave salary, Study
Allowance, cost of fees, travelling and other expenses,
if any, incurred by the Government of India;
and ……………
Provided that except in the case of employees who fail
to complete the course of study nothing in this rule
shall apply –
(a) to a Government servant who, after return to
duty from study leave, is permitted to retire from
service on medical grounds; or …………………..”.
The above quoted Rule 63 provides that the incumbent should
furnish the certificate as required under sub-rule 5 of Rule 53.
Otherwise he will be required to refund leave salary. Sub-rule 5
W.P.(C).No.3969 of 2006 – S
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of Rule 53 reads as follows:
“53. Sanction of study leave.
x x x x x
x x x x x
(5)(a) On completion of the course of study, the
Government servant shall submit to the authority
which granted him the study leave, the certificates of
examinations passed or special courses of study
undertaken, indicating the date of commencement and
termination of the course with the remarks, if any, of
the authority in charge of the course of study”.
The said rule provides for producing the certificate of the
examination passed or the course of study undertaken. The said
rule does not say that he should clear the examination and
present the certificate. He should submit whatever examination
he was able to clear. But according to the petitioners, when
these two rules are read together it is mandatory to complete the
course, pass the examination and produce the certificates as
proof thereof. The respondent on the other hand would submit
that the Rules do not expressly state that the applicant should
pass the examination after the completion of the course of study
and otherwise he should repay the leave salary that was received
by him.
W.P.(C).No.3969 of 2006 – S
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2. Going by the rules, two views are possible. A view in
favour of the employee has been taken by the Tribunal. Both
sides did not cite any precedent on this point. Normally, by
interpreting a rule additional burden cannot be cast on an
incumbent who is governed by the rule. If there is vagueness in
the rule regarding any liability arising therefrom, normally,
vagueness should go in favour of the person affected. Since the
interpretation of the rule adopted by the Tribunal being a
plausible view, we feel that it is not proper for us to interfere with
the same under Article 226 of the Constitution of India.
Accordingly, the writ petition fails and it is dismissed.
K.BALAKRISHNAN NAIR,
JUDGE.
M.L.JOSEPH FRANCIS,
JUDGE.
bkn/-