Partly allowed

Kerala State Road Transport Corporation v. P.M Hassan

Kerala HC14 Feb 2018WA/858/2014

Case brief

AI extract

What is this about?

Writ appeal by KSRTC against a Single Judge order that reckoned a period of unauthorized absence as qualifying service for pension. The bench held that without proof of prevention from rejoining duty, the lower court could not direct pension benefits for that period and allowed the appeal partially.

What did the court decide?

Vacated the lower court's observation regarding reckoning the unauthorized absence period as qualifying service for pension; appeal allowed in part.

Kerala State Road Transport Corporation Vs… — Pension and Retirement Benefits | Kerala HC (2018)

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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.N.RAVINDRAN &

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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WEDNESDAY, THE 14TH DAY OF FEBRUARY 2018 / 25TH MAGHA, 1939

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WA.No. 858 of 2014 IN WPC. 27989/2012

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(AGAINST THE JUDGMENT IN WP(C) 27989/2012 OF HIGH COURT OF KERALA, DATED 04-12-2013)

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APPELLANT/1ST RESPONDENT:

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KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM-695 023.

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BY ADV.SHRI.T.P SAJAN, SC, KERALA STATE ROAD TRANSPORT CORPORATION

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RESPONDENT/PETITIONER:

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P.M HASSAN, (DRIVER, KERALA STATE ROAD TRANSPORT CORPORATION), SULTAN'S BATHERY DEPOT, RETIRED ON 30.06.2004, PANDIKASALA, MANGALASSERI, FEROKE P.O., KOZHIKODE-673 631.

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BY ADV. SRI.K.P.RAJEEVAN

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14-02-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.N.RAVINDRAN & R.NARAYANA PISHARADI, JJ.

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W.A.No.858 of 2014

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Dated this the 14^th day of February, 2018

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JUDGMENT

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P.N.Ravindran, J.

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The appellant is the Kerala State Road Transport Corporation (hereinafter referred to as “the Corporation” for short). It was the first respondent in W.P.(C)No.27989 of 2012, a writ petition filed by the sole respondent herein challenging Ext.P24 order dated 26.9.2012 passed by the Chairman and Managing Director of the Corporation and seeking a direction to the appellant to treat the period from 24.12.1990 to 16.11.2002 and the period from 8.5.2003 to 30.6.2004 as duty for all purposes. By judgment delivered on 4.12.2013, a learned single Judge of this court allowed the writ petition in part, quashed Ext.P24 to the extent it denied service benefits to the petitioner during the period from 8.5.2003 to 30.6.2004 and directed the respondents in the writ petition to rework and compute the consequential benefits and to pay the same at the earliest and at any rate within three months from the date of receipt of a copy of the judgment. The learned single Judge thereafter proceeded to clarify that the leave without allowances granted to the writ petitioner by the impugned order itself during the period from 24.12.1990 to 16.11.2002 should also be reckoned

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as qualifying service for pension and other pensionary benefits. The Corporation has, aggrieved by that part of the judgment namely the directions issued in paragraph 6, filed this writ appeal. The brief facts of the case are as follows:

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The appellant entered service as Driver in the Corporation on 2.4.1977. While he was working as Driver, disciplinary action was initiated against him for unauthorised absence from duty with effect from 24.12.1990. It resulted in Ext.P1 order dated 13.9.1993, whereby the disciplinary authority imposed on him the punishment of barring of one increment for a period of two years. The disciplinary authority also directed that the period of absence be treated as leave without allowances. Ext.P1 order has admittedly attained finality. The petitioner did not however rejoin duty. He continued to be absent without leave. Consequently, the disciplinary authority initiated another disciplinary action against him. After considering the explanation submitted by the petitioner to the memo of charges, the disciplinary authority decided to conduct an enquiry and appointed an enquiry officer. The petitioner did not participate in the enquiry. The enquiry officer, after considering the materials on record, submitted a report finding the petitioner guilty of the charge levelled against him. The disciplinary authority

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thereafter issued a show cause notice together with a copy of the enquiry report and called upon the petitioner to show cause why he shall not be removed from service. After considering the reply submitted by the petitioner, the disciplinary authority namely the Executive Director (Vigilance), issued Ext.P2 order dated 7.4.1997, imposing on the petitioner the punishment of compulsory retirement from service from the date of commencement of the unauthorised absence, namely 24.12.1990. The appeal filed by the petitioner challenging that order was dismissed by the Managing Director by order passed on 8.1.1999. The petitioner challenged that order before the Appellate Tribunal by filing R.P.No.7 of 1999, which was dismissed by Ext.P3 order passed on 17.7.1999. The petitioner thereupon filed O.P.No.28880 of 1999 in this court challenging Exts.P2 and P3 orders, which were produced and marked as Exts.P9 and P12 therein. One of the grounds raised in the said writ petition was that he has been punished for unauthorised absence on two occasions and therefore, on the principle that none can be punished for the same offence twice, the impugned order is liable to be set aside.

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When O.P.No.28880 of 1999 came up for consideration before a learned single Judge of this court on 11.10.2001, on

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noticing that this aspect of the matter has not been considered by the appellate tribunal, the learned single Judge allowed O.P.No.28880 of 1999, set aside Ext.P12 (Ext.P3 in the instant writ petition) and directed the appellate tribunal to pass fresh orders in the matter. Though the appellate tribunal noticed the fact that there is overlapping of the period of unauthorised absence in the memo of charges leading to Ext.P1 and in the memo of charges leading to Ext.P2 and also held that the charge sheet is defective to that extent, it did not interfere with the award of punishment on the ground that the principle of double jeopardy has no application to domestic enquiry and disciplinary action. The appellate tribunal thereafter proceeded to consider the appeal on the merits and by Ext.P5 order passed on 3.8.2002, set aside Ext.P2 order on the ground that the charges have not been properly framed. The appellate tribunal however reserved liberty with the Corporation to proceed against the petitioner for his absence from the date of the charge sheet which lead to Ext.P1 punishment namely from 5.2.1992, after clearly specifying the period of absence.

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The petitioner thereupon filed O.P.No.26817 of 2002 in this court challenging Ext.P5 order and seeking the following reliefs:

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“ i) call for the records leading to this case and declare that the petitioner is entitled to get re-

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instated to duty.

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ii) issue a writ order or direction in the nature of mandamus or any appropriate writ order or direction to the respondents to re-instate the petitioner for duty immediately.

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iii) issue a writ order or direction in the nature of mandamus to the respondents to treat the period of out of service of the petitioner consequent to the disciplinary proceedings as duty for all purpose of service benefits.

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and

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iv) issue such other order or directions as this Hon'ble Court deem to issue in the fact and circumstances of this case. ”

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He had in the said writ petition filed C.M.P.No.45517 of 2002 with a

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prayer that an interim order may be passed directing the respondents to reinstate him in service pending disposal of the original petition. After hearing learned counsel for the petitioner, a learned single Judge of this court passed Ext.P6 interim order on 19.9.2002 in O.P.No.26817 of 2002 directing the respondents therein to reinstate the petitioner in service within one month from the date of production of a copy of the order. The learned single Judge also reserved liberty with the Corporation to challenge Ext.P5 order, which was produced and marked as Ext.P4 in O.P.No.26817 of 2002 and also observed that in case an order staying the operation of Ext.P5 order is passed, the interim order to reinstate the petitioner in service will be subject to the order of stay.

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Pursuant to Ext.P6 interim order passed by this court,

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the Corporation issued Ext.P7 memo dated 16.11.2002 readmitting the petitioner to duty with effect from the forenoon of that day. Since this court had not stayed the operation and implementation of Ext.P5, the Corporation proceeded to issue a fresh memo of charges, a copy of which is Ext.P8. The writ petitioner submitted his reply. Since the reply was not satisfactory, the disciplinary authority decided to conduct an enquiry and appointed an enquiry officer. The enquiry officer after enquiry submitted Ext.P9 report dated 24.12.1990, finding the petitioner guilty of the charges leveled against him that, he was unauthorisedly absent from duty with effect from 24.12.1990 and that he was running a brick factory and a saw mill at Feroke on his own. It was also alleged that he was seen engaged as a driver in a pick-up van bearing Reg.No.KL-7E/1407. The disciplinary authority after considering the representation submitted by the petitioner to the findings in Ext.P9 enquiry report, issued a show cause notice calling upon him to show cause why the punishment of removal from service, shall not be imposed on him. The petitioner thereupon submitted Ext.P10 reply. After considering the reply, the disciplinary authority, issued Ext.P11 order dated 8.5.2003, removing the petitioner from service with effect from 24.12.1990.

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The petitioner challenged Ext.P11 order by filing Ext.P13 appeal dated 12.5.2003 before the Managing Director of the Corporation. He thereafter filed W.P.(C)No.16403 of 2003 in this court, inter alia seeking a direction to the Managing Director of the Corporation to dispose of the appeal. By Ext.P14 judgment delivered on 28.5.2003, a learned single Judge of this court disposed of W.P. (C)No.16403 of 2003 with a direction to the Managing Director of the Corporation to consider and pass orders on the appeal, in accordance with law, after affording the petitioner an opportunity of being heard. The Managing Director thereupon heard the petitioner and passed Ext.P15 order dated 19.6.2003 dismissing the appeal. It appears that the petitioner thereafter sought a review and a rehearing. The appellate authority however did not find any reason to take a different view and issued Ext.P16 order dated 20.12.2003 dismissing the appeal. The appellant thereupon filed W.P.(C)No.3479 of 2004 in this court challenging Exts.P11 and P16 orders, which were produced and marked as Ext.P11 and Ext.P16 respectively therein.

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W.P.(C)No.3479 of 2004 and O.P.No.26817 of 2002 wherein Ext.P6 interim order had been passed directing the Corporation to readmit the petitioner to duty, were heard and

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disposed of by a learned single Judge of this court by Ext.P18 judgment delivered on 2.7.2004. The learned single Judge held that though the appellate tribunal had granted liberty to the Corporation to proceed against the petitioner for the alleged unauthorized absence from the date of the charge sheet which led to Ext.P1 namely 5.2.1992, in the fresh charge-sheet issued thereafter, the allegation was that he was unauthorisedly absent from 24.12.1990. The learned single Judge held that in the light of Ext.P5 order passed by the appellate tribunal, a charge of absence from duty from 24.12.1990 could not have been leveled against the petitioner. Though the learned single Judge was of the opinion that may be, the petitioner deserved a severe punishment for not having reported for duty for a continuous period exceeding five years as contemplated in Rule 24 of Part-I KSR (in this case from 24.12.1990 onwards), that is not what has been done in the instant case. In that view of the matter, the learned single Judge set aside Exts.P11 and Ext.P16. However, having regard to the fact that the petitioner had by then attained the age of superannuation on 30.6.2004, the Managing Director was directed to pass a proper order taking into account the entire facts and circumstances. In the light of the judgment in W.P.(C)No.3479 of 2004 it was observed that no further

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orders are necessary in O.P.No.26817 of 2002 and it was closed.

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The Managing Director thereupon issued Ext.P19 order dated 27.4.2005 holding that as the petitioner stands removed from service with effect from 24.12.1990, on account of unauthorized absence for a period in excess of five years, he is not entitled to any benefit for the service rendered by him prior to or after the date of such removal. The petitioner thereupon filed W.P.(C)No.19027 of 2005 in this court challenging Ext.P19 order. By Ext.P20 judgment delivered on 25.1.2010, a learned single Judge of this court held that, in view of the fact that the petitioner has retired from service, an order imposing punishment as contemplated in the rules cannot

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be passed and that the only question which survives for consideration is the manner in which the period of absence and the period subsequent to 8.5.2003 is to be dealt with. In view of the fact that the said aspect of the matter had not been considered by the Managing Director, the learned single Judge directed the Managing Director to decide the manner in which the period of absence and the period subsequent to 8.5.2003 are to be dealt with. The Managing Director thereupon issued Ext.P24 order dated 26.9.2012, wherein he directed as follows:

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“The period of absence in respect of Sri.P.M.Hassan, Driver from 24.12.1990 onwards was proved as unauthorised.

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IT may be noted that government have issued circulars and orders against unauthorised absentees stipulating that unauthorised absence of officer's shall be viewed seriously and disciplinary action shall be taken without delay. There is no evidence in the connected files to prove that the petitioner had applied for leave in time or his absence was duly authorized. No service has been benefited by the Corporation, from him during the period of the above unauthorised absence. It may also be noted that the Hon'ble High Court vide its order dated 19.09.2002 in WP(C)26817/2002 has issued directions to reinstate the petitioner in service within one month. Accordingly the petitioner was readmitted to duty and posted at Sulthan Bathery with effect from the FN of 16.11.2002 vide memorandum numbered VLE2-35865/2002 dated 07.11.2002. He continued in service from 16.11.2002 till 08.05.2003 the date of his removal from service. Hence the period of absence of Sri.P.M.Hassan, Retired driver from 24.12.1990 to his readmission to duty as Leave Without Allowance which will not count for any service and pensionary benefits. Considering the fact that the petitioner was readmitted to duty consequent to the order of the High Court in WP(C)26817/2002 the period after 08.05.2003 to 30.06.2004, the date of his superannuation is treated as Eligible Leave which will be counted for pension and pensionary benefits only. Hence the direction contained in the judgment in WP(C)12987/2012 is complied with.”

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The Managing Director ordered that the period during which the petitioner was absent namely the period from 24.12.1990 till the date of his readmission to duty (16.11.2002) will not count

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for any service/pensionary benefit. The Managing Director further directed that the period after 8.5.2003 to 30.6.2004 shall be treated as eligible leave and it will be counted for pension and pensionary benefits only. It was challenging the said order that the instant writ petition was filed. By the impugned judgment which was delivered on 4.12.2013, the learned single Judge held that the decision taken by the Managing Director in Ext.P24 to treat the period of absence from 24.12.1990 to 16.11.2002 as leave without allowances cannot be interfered with. The learned single Judge also held that denial of service benefits to the petitioner for the period from 8.5.2003 to 30.6.2004 cannot be sustained. The learned single Judge accordingly held that the petitioner will be eligible for all service benefits during the said period and directed the respondents to rework and compute the consequential monetary benefits and pay the same to the petitioner at the earliest and at any rate, within a period of three months from the date of receipt of a copy of the judgment. The learned single Judge thereafter proceeded to observe and clarify that the period of leave without allowances from 24.12.1990 to 16.11.2002 should also be reckoned as qualifying service for pension and other service benefits. The said part of the judgment is under challenge in this appeal.

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We heard Sri.T.P.Sajan, learned standing counsel appearing for the appellant and Sri.K.P.Rajeevan, learned counsel appearing for the writ petitioner. We have also gone through the pleadings and the materials on record. The fact that the petitioner was unauthorisedly absent from 24.12.1990 till 13.9.1993, the date on which Ext.P1 order imposing the punishment of barring of one increment was passed, is not in dispute. Ext.P1 has admittedly attained finality. There is nothing on record to show that the petitioner had made attempts to rejoin duty at least after the date of Ext.P1, namely from 13.9.1993 till 7.4.1997, the date of Ext.P2. In fact the learned single Judge has in the impugned judgment held that there is nothing on record to show that the petitioner was in any manner prevented from rejoining duty during the period from 24.12.1990 to 16.11.2002. In short, the continuous absence of the petitioner without leave from 24.12.1990 till 16.11.2002 is virtually admitted. The unauthorized absence continued even after 5.2.1992, the date of the charge sheet and 13.9.1993, the date of Ext.P1 order and this in turn resulted in Ext.P2 order dated 7.4.1997 imposing the punishment of compulsory retirement. Ext.P2 order was set aside by the appellate tribunal on the short ground that the charge-sheet lacks clarity. The finding of the tribunal was that the

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period of unauthorized absence covered by the earlier order imposing punishment was also taken into account. The tribunal held that the period of unauthorized absence has to be shown with clarity. A fresh charge-sheet was accordingly issued. However even in the fresh charge sheet thus issued, the unauthorized absence was shown as commencing from 24.12.1990.

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Though Ext.P5 order was subjected to challenge in O.P.No.26817 of 2002 it was not set aside. Only an interim order was passed in O.P.No.26817 of 2002 (Ext.P6) to reinstate the petitioner in service and that was complied with on 16.11.2002 as per Ext.P7 memo. Thereafter, in view of the fact that an order of stay had not been passed, a second charge-sheet was issued (Ext.P8), without really understanding the scope of Ext.P5 order. Therein also it was alleged that the petitioner was unauthorisedly absent from 24.12.1990. The enquiry officer found him guilty of the charge of unauthorized absence and it resulted in Ext.P11 order imposing the punishment of compulsory retirement. The appeal filed by the petitioner was dismissed as per Ext.P15 and Ext.P16 orders. The said orders were challenged in W.P.(C)No.3479 of 2004. The said writ petition was heard along with O.P.No.26817 of 2002, wherein Ext.P6 interim order had been passed directing

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reinstatement of the petitioner. The writ petitions were disposed of by Ext.P18 judgment delivered on 2.7.2004. The petitioner had in the meanwhile retired from service on attaining the age of superannuation on 30.6.2004. Though the learned single Judge of this court held in Ext.P18 judgment that the original authority and the appellate authority travelled outside Ext.P5 and therefore the impugned orders are liable to be set aside, the learned single Judge did not grant any relief to the petitioner regarding the manner in which the period of unauthorised absence had to be treated. This court did not decide the question whether the period of unauthorized absence should be treated as leave without allowances eligible for all service benefits or whether the service benefits should be confined to a portion thereof. The learned single Judge left the said issue to be decided by the Managing Director. The Managing Director accordingly passed Ext.P24 order which has given rise to the instant writ petition.

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The learned single Judge has, as stated earlier, come to a conclusive finding that the petitioner has not proved that he was in any manner prevented from rejoining duty during the period from 24.12.1990 till 16.11.2002 and therefore the decision taken by the Managing Director to treat the said period of absence as leave

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without allowances cannot be interfered with. The appellant does not challenge the finding in paragraphs 4 and 5 that the Managing Director erred in denying service benefits to the petitioner during the period from 8.5.2003 to 30.6.2003. As stated earlier, the appellant challenges only the observations in paragraph 6 of the impugned judgment wherein the learned single Judge has clarified that the period from 24.12.1990 till 16.11.2002 should also be reckoned as service qualifying for pensionary benefits. In our opinion, in the light of the finding entered by the learned single Judge himself that the petitioner has not proved that he was in any way prevented from rejoining duty during the period from 24.12.1990 till 16.11.2002, the learned single Judge ought not have directed that the said period also shall be reckoned as service qualifying for pensionary benefits. Unless the petitioner is able to show that notwithstanding his readiness and willingness to rejoin duty, he was prevented by his superior officer from rejoining duty, a clarification as contained in paragraph 6 could not have been made.

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It is relevant in this context to note that even in the instant writ petition, he has no such case. The only case pleaded by him in respect of the unauthorized absence is that on account of medical reasons, he could not report for duty from 24.12.1990. A

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reading of the writ petition would show that though the petitioner was absent from 24.12.1990 onwards, disciplinary action was taken against him only in February 1992, as per the charge sheet issued on 5.2.1992. He has no case in the instant writ petition that he had been repeatedly requesting the authorities to permit him to rejoin duty at least after the date on which the charge sheet was given. He has no case that he was periodically submitting leave applications accompanied by medical certificates for grant of leave. The dates on which the leave applications were submitted are also not mentioned in the instant writ petition. His case in the writ petition is that he was not absent from duty as he was suffering from illness which prevented him from attending to his duties. That in our opinion is not a ground for not applying for grant of leave or from pleading and proving that notwithstanding his request for permission to rejoin duty, such permission was not granted. In any case, he has not challenged the finding in Ext.P1 order that he was unauthorisedly absent from 24.12.1990 till the date of the chargesheet which lead to Ext.P1 order dated 13.9.1993. It is also not in dispute that this state of affairs continued till he was actually readmitted to duty on 16.11.2002, pursuant to Ext.P6 interim order of this court in O.P.No.26817 of 2002. Though that writ petition was

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also disposed of along with W.P.(C)No.3479 of 2004 by Ext.P18 judgment, the appellant did not pursue the reliefs prayed for in the said writ petition. Even in Ext.P18 judgment, this court left it to the discretion of the Managing Director to pass appropriate orders in the matter. In other words, this court did not even while interfering with Ext.P11 order imposing the punishment of compulsory retirement, deem it fit and proper to direct that the period during which the petitioner was unauthorisedly absent should be treated as leave without allowances and reckoned for grant of service/pensionary benefits. What the petitioner now wants is grant of pensionary benefits, taking into account the period during which he was admittedly absent without leave. There is no finding in Ext.P18 judgment of this court or in any other judgment of this court that the petitioner was not unauthorisedly absent.

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A reading of Exts.P14 and P18 judgments of this court would indicate that it was on account of a defect in the memo of charges that this court interfered with the order imposing punishment. Had the memo of charges been clear and specific, it is evident that the order imposing punishment would not have been interfered with. Having regard to the facts stated above, we are of the opinion that it will be unjust and inequitable to hold that the

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petitioner, who was unauthorisedly absent during the period from 24.12.1990 till 16.11.2002 and has not proved that he was prevented by the employer from rejoining duty, should be given pensionary benefits treating the said period as duty. In respect of a portion of the period namely the period from 24.12.1990 to 5.2.1992, he was punished and the punishment of barring of one increment without cumulative effect for a period of two years was imposed on him. That order has attained finality. The denial of service benefits during the said period is only a consequence of his unauthorized absence and cannot be said to be another penalty for the same misconduct. The punishment for the misconduct awarded in Ext.P1 as also the punishment awarded in Ext.P11 are for different periods. The petitioner cannot therefore in our opinion be given service benefits during the period from 24.12.1990 to 16.11.2002. In our opinion, the observation in paragraph 6 of the impugned judgment could not have been made in view of the finding in paragraph 3 that it was open to the employer to treat the period from 24.12.1990 to 16.11.2002 as leave without allowances.

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We accordingly allow the appeal in part and vacate the observation in paragraph 6 of the impugned judgment that the period of leave without allowances granted to the petitioner during

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the period from 24.12.1990 to 16.11.2002 should be reckoned as service qualifying for pension and pensionary benefits. No costs.

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Sd/- (P.N.Ravindran, Judge)

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Sd/- (R. Narayana Pisharadi, Judge)

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//True Copy//

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P.A. To Judge

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Kerala State Road Transport Corporation v. P.M Hassan

Case brief

What is this about?

What did the court decide?

Kerala State Road Transport Corporation v. P.M Hassan

Case brief

What is this about?

What did the court decide?

What the court decided

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