Disposed

Giri v. Vs Kseb

Kerala HC3 Dec 2012WP(C)/23346/2012

Case brief

AI extract

What is this about?

This writ petition challenged the rejection of an application to extend leave without allowance (LWA) for a government employee whose daughter was studying abroad. The Court held that the statutory limit was not exceeded but allowed the petitioner until March 1, 2013, keeping disciplinary proceedings in abeyance while he joined duty. If he fails to join, punishment may be imposed.

What did the court decide?

Petitioner permitted to rejoin duty on or before 01.04.2013; disciplinary proceedings kept in abeyance pending his return.

Giri v. Vs Kseb — Service and Employment | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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MONDAY, THE 3RD DAY OF DECEMBER 2012/12TH AGRAHAYANA 1934

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WP(C).No. 23346 of 2012 (P)

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PETITIONER(S) :

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GIRI V., AGED 44 YEARS ASSISTANT ENGINEER, GENERAL CIRCLE, MOOLAMATTOM, IDUKKI DISTRICT. (RESIDING AT GIRI NIVAS PALACE ROAD, ATTINGAL,THIRUVANANTHAPURAM)

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BY ADV. SRI.BIJU BALAKRISHNAN

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RESPONDENT(S) :

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1. KSEB VYDHUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM REPRESENTED BY ITS CHAIRMAN -695 004.

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2. THE SECRETARY KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM -695 004.

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3. THE CHIEF ENGINEER (HUMAN RESOURCES MANAGEMENT) KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVAN PATTOM, THIRUVANANTHAPURAM-695 004.

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4. THE DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, GENERATION CIRCLE, MOOLAMATTOM, IDUKKI DISTRICT - 685 589.

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R1-4 BY SRI.VIJU THOMAS,SR. GOVERNMENT PLEADER R1-4 BY SRI.K.S.ANIL, SC, KSEB

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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AMV

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WP(C).No. 23346 of 2012 (P)

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APPENDIX

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PETITIONER(S) EXHIBITS :

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EXHIBIT-P1COPY OF THE PROCEEDINGS NO. EBI (A)/AE (ELE.)/LWA/2001/298 DATED 20/12/2001

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EXHIBIT-P2COPY OF THE PROCEEDINGS NO. EB. 1 (A)/A.E ELE.) 2007/322, DATED 15/02/2007

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EXHIBIT-P3COPY OF THE CERTIFICATE DATED 08/04/2012 ISSUED BY THE PRINCIPAL, OUR OWN ENGLISH HIGH SCHOOL, SHARJA EDUCATIONAL ZONE, SHARJAH, U.A.E

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EXHIBIT-P4COPY OF THE ENGLISH TRANSLATION OF EXHIBIT-P3 EXHIBIT-P5COPY OF THE APPLICATION DATED 05/03/2012 FOR EXTENSION OF LWA, SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT, THROUGH THE 4TH RESPONDENT.

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EXHIBIT-P6COPY OF THE SHOW CAUSE NOTICE DATED 27/03/2012 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.

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EXHIBIT-P7COPY OF THE REPLY DATED 10/04/2012 OF THE PETITIONER. EXHIBIT-P8COPY OF THE REMINDER LETTER DATED 10/04/2012 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

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EXHIBIT-P9COPY OF THE B.O (FB) NO. 1693/2007 (ESTT.1/5050/2007) DATED 21/07/2007 OF THE 2ND RESPONDENT.

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EXHIBIT-P10COPY OF THE B.O (FB) NO. 420/2012 (ESTT. 1/5050/2007) DATED 22/02/2012 OF THE 2ND RESPONDENT.

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EXHIBIT-P11COPY OF THE PROCEEDINGS NO. EBI (A)/AE (ELE.)/ LWA/2012/104/15/09/2012 DATED 12/09/2012

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EXHIBIT-P12COPY OF THE COMMUNICATION NO. EBI /3/AE(ELE.)/LWA/2012-13/451 DATED 26/09/2012 OF THE 4TH RESPONDENT.

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EXHIBIT-P13COPY OF THE DETAILS OF OFFICERS/STAFF WHO HAVE BEEN EXTENSION OF LEAVE BEYOND 5 YEARS AFTER 21/07/2007.

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EXHIBIT-P14 COPY OF THE CERTIFICATE DATED 04.04.2012 ISSUED FROM THE OUR OWN ENGLISH HIGH SCHOOL, SHARJAH.

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EXHIBIT-P15 COPY OF THE OVERSEAS EMPLOYMENT CONTRACT EXECUTED IN FAVOUR OF THE PETITIONER.

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EXHIBIT-P16 COPY OF THE ONLINE BANK STATEMENT.

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RESPONDENTS' EXHIBITS : NIL

/TRUE COPY/

P.A.TO JUDGE

AMV

P.R.RAMACHANDRA MENON, J.

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W.P.(C) NO.23346 of 2012 (P)

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Dated this the 3^rd day of December, 2012

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JUDGMENT

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The leave without allowance refused to be extended beyond

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the period of sanction, even by 'one year' as sought for, to complete the academic year of the daughter of the petitioner (i.e., till 31.03.2013) who is residing with the petitioner and pursuing her studies abroad, is the subject matter of challenge involved in this writ petition.

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The petitioner, after obtaining B.Tech Degree in Electrical Engineering joined the service in the K.S.E.Board as Assistant Engineer in the year 06.04.1998 and his probation was declared on 06.04.2000. While working as Assistant Engineer (Ele.) at Generation Circle, Moolamattom in Idukki District, the petitioner applied for the Leave Without Allowance for a period of 5 years, which was sanctioned as per Ext.P1 order dated 20.12.2001 and he availed the same from 22.03.2002. This was subsequently got extended by a further period of 5 years as per Ext.P2 order dated 15.02.2007. Meanwhile, the petitioner's wife

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W.P.(C) NO.23346 of 2012 (P)

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also got employment abroad and the daughter also joined them and she is pursuing her studies there, right from the 1^st standard. She is now in the 7^th standard and the particulars of study have been given by the school authorities as borne by Exts.P3/P4.

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Since the leave already sanctioned was to expire on 21.03.2012, the petitioner preferred Ext.P5 application dated 05.03.2012 for further extension, to complete the 'current academic year' of his daughter. The application was submitted in the prescribed form, accompanied with all the relevant documents. But immediately thereafter, the petitioner was served with Ext.P6 show-cause notice dated 27.03.2012 issued by the 4^th respondent. This is stated as served to the petitioner on 07.04.2012. As per the said proceedings, the petitioner was required to explain why the non joining of duty even after the expiry of leave should not be proceeded against and the service could not be terminated in accordance with the relevant provisions of law. According to the petitioner, the 4^th respondent does not have any power, competence or authority to have

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W.P.(C) NO.23346 of 2012 (P)

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issued Ext.P6. Anyhow, the petitioner simultaneously submitted Exts.P7 and P8 before the 4^th and 3^rd respondents respectively, on 10.04.2012.

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Referring to the contents of Exts.P9 and P10 (whereby the norm for granting/extension of leave without allowance came to be changed), the petitioner contends that they are not applicable to him, as he was let known as per Ext.P2 (at the time of granting the extension for a further period of 5 years) that the maximum leave which could be availed by an employee was 20 years. However, Ext.P11 order came to be passed on 12.09.2012, whereby the application for extension of leave submitted by the petitioner came to be rejected and the petitioner was directed to report for duty with immediate effect, so as to avert disciplinary action against him. This was followed by the consequential order by way of Ext.P12 dated 26.09.2012. The petitioner is challenging Exts.P11 and P12 in this writ petition, also contending that several persons are being permitted to continue on 'LWA' even after expiry of 5 years, as borne by Ext.P13.

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W.P.(C) NO.23346 of 2012 (P)

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The 3^rd respondent has filed a statement asserting that

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the petitioner does not have any vested right to have the LWA extended. It is also stated that, by virtue of the relevant rules/norms, the maximum leave that can be granted is only for a period of '5' years; whereas the petitioner has admittedly completed 'ten' years, by way of Exts.P1 and P2. With reference to Clause 6 of Ext.P10 relied on by the petitioner, the respondents contend that the same is not applicable to the petitioner, as it deals only with the power of the Chairman to extend the LWA beyond the period of '5' years. The petitioner has filed a reply affidavit producing some additional documents as Exts.P14 to P16, referring to the hard realities as to the availing of loan from a Bank situated abroad for completing his house construction, such other particulars as to the study of his daughter and also the contract entered into with the employer abroad, which mandates issuance of a minimum three month's notice for terminating the contract.

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Heard the learned counsel for the petitioner as well as the learned standing counsel for the respondent Board in detail.

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W.P.(C) NO.23346 of 2012 (P)

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The primary question to be answered is whether the stand taken by the respondent Board is correct or sustainable and if any infringement of any provisions/norms with regard to the granting of LWA, is there. There is no dispute even for the petitioner that the norms for granting the leave came to be changed, after granting the initial leave by way of Ext.P1 and the subsequent extension by way of Ext.P2 dated 15.02.2007. It was immediately thereafter that the norms got changed as per Ext.P9, followed by Ext.P10. The rules are not under challenge. Clause 2 of Ext.P10 clearly states that the maximum period of leave that could be granted to an employee who seeks for LWA is for a period of 5 years. Clause 6 is an exception, which deals with the power of the Chairman to extend the LWA beyond 5 years. The said rule reads as follows :

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Cl .6 : Extension of LWA beyond Five Years Extension of LWA beyond five years may be granted by the Chairman in consultation with Full Time Members for a maximum period of one year under the following exceptional circumstances: (a) Till the completion of the academic year of the children of the employee who are staying with the employee and undergoing course in the same country where the employee works.

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W.P.(C) NO.23346 of 2012 (P)

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(b) For treatment of the employee, spouse or children for serious ailments which can be treated only in that country and for which no treatment is available in India.

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(c) Incapacitated due to accidents or untoward incidents happened while working abroad. In such cases, the employee is required to submit along with the application, copies of documents substantiating their claims, duly attested by the authorised officers in Indian Embassy/High Commission of the respective country.

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By virtue of the above provision, in the case of a person who was already availed LWA for a period of '5' years can seek for extension, in respect of three specified circumstances given under sub clauses (a), (b) and (c).

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The Clause, if at all any applicable, is '6(a)'. The provision is very specific and categoric that, it is only by way of the discretion, vested with the Chairman, that he can extend the leave beyond the period of '5' years as stipulated, to a maximum extend of 'one year' in appropriate cases. The petitioner has already completed 10 years of service as per Exts.P1 and P2, who

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does not come within the purview of the said clause and hence the same cannot be pressed into service.

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W.P.(C) NO.23346 of 2012 (P)

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It is to be noted that the specific reason projected in Ext.P5 application for extension of leave and also in Exts.P7 and P8 was for completing the “current academic year” in respect of the studies being pursued by the daughter of the petitioner. Even if Clause '6(a)' is held as applicable to the case of the petitioner, the power to be exercised by the Chairman by granting extension, in consultation with the concerned authority, is only to a maximum period of 'one year' to enable the child to complete the 'current academic year'. Admittedly, the leave granted as per Ext.P2 was to come to an end on '21.03.2012' and it was accordingly, that Ext.P5 application was submitted on 05.03.2012, followed by Exts.P7 and P8, seeking for extension of

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the leave till completion of the academic year. Then the question is, which academic year ?

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The school authorities, as per Exts.P3/P4 and also as per Ext.P14 produced by the petitioner along with the reply affidavit, certify that the 'academic year is from April to March'. This being the position, when the leave sanctioned to the petitioner as per Ext.P2 came to an end on 21.03.2012, Ext.P5

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W.P.(C) NO.23346 of 2012 (P)

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application submitted by the petitioner on 05.03.2012 has necessarily to be confined to an extension till the expiry of the 'current academic year' i.e., 2011-2012; which was to come to an end on 31.03.2012. To put it more clear, even if clause 6(a) of Ext.P10 is attracted, the power vested upon the Chairman was only to have extension of the 'current academic year' when the leave came to be expired; i.e., only till 31.03.2012 and never beyond. This being the position, the petitioner could not have remained any further abroad; more so, when he was let known as per the relevant proceedings, particularly Ext.P6, asking to show-cause referring to the sequence of events and the petitioner ought to have made appropriate arrangements on time, to have joined duty, latest by 01.04.2012.

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The petitioner contends that the petitioner is employed in a Government Company in the Gulf and that by virtue of Ext.P15 Contract, the petitioner has to give at least three month's notice, failing which, the entire service rendered by the petitioner will turn to be futile, as no service benefits will be released to him. While this Court finds that the respondent Board

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W.P.(C) NO.23346 of 2012 (P)

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cannot be found fault with for having issued Exts.P11 and P12, alerting the petitioner as to the necessity to join duty immediately; lest there should be disciplinary proceedings, it also remains a fact whether the petitioner should be given the capital punishment. Considering the particular facts and circumstances, this Court finds that by granting of three month's time to the petitioner to join duty, without prejudice to the right of the department Board to pursue the disciplinary proceedings for inflicting appropriate punishment, no prejudice, what so ever will be resulted to the respondent Board. Considering the fact that it will expire by early March 2013 and the present academic year will be over by 31^st of March 2013, this Court permits the petitioner to rejoin duty on or before 01.04.2013, as a special case. In the said circumstance, it is for the petitioner to consider and decide whether he should join duty after winding up the job abroad or whether he should pursue his fortune there. In the said circumstance, the further course of disciplinary action which is sought to be pursued by the respondent Board in respect of the overstay beyond the sanctioned shall be kept in abeyance till

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W.P.(C) NO.23346 of 2012 (P)

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01.04.2013. If the petitioner does not turn up before the Board by joining duty on or before 01.04.2013, the respondent Board is

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free to proceed with further steps for imposing appropriate punishment; as conceded to the said extent by the learned counsel for the petitioner. If the petitioner joins duty on or before 01.04.2013, it is open for the Board to consider the matter and proceed further to decide the appropriate extent of punishment to be imposed upon the petitioner in respect of the proven misconduct, which stands admitted. With liberty to proceed with further steps as above, this writ petition is disposed of, and it is for the parties to give effect to the verdict, in the light of the observations made herein before.

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sd/- P.R.RAMACHANDRA MENON, JUDGE

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AMV

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W.P.(C) NO.23346 of 2012 (P)

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Giri v. Vs Kseb

Case brief

What is this about?

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Giri v. Vs Kseb

Case brief

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