Kerala High Court
A.Alavikutty vs Kerala State Electricity Board
Author: C.T. Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
FRIDAY, THE 1ST DAY OF AUGUST 2014/10TH SRAVANA, 1936
WP(C).No. 25300 of 2012 (J)
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PETITIONER(S):
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A.ALAVIKUTTY,
SENIOR ASSISTANT (RETIRED)
KERALA STATE ELECTRICITY BOARD
RESIDING AT ALANGADAN HOUSE, P.O.PARAPPUR
KOTTAKKAL-676 503.
BY ADVS.SRI.P.M.PAREETH
SRI.MOHAMMED SHAMEEL
RESPONDENT(S):
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1. KERALA STATE ELECTRICITY BOARD
REPRESENTED BY ITS SECRETARY, VIDYUTHI BHAVANAM
PATTOM, THIRUVANANTHAPURAM. 695 001.
2. CHAIRMAN
KERALA STATE ELECTRICITY BOARD, VIDYUTHI BHAVANAM
PATTOM, THIRUVANANTHAPURAM. 695 001.
3. CHIEF ENGINEER (HRM)
KERALA STATE ELECTRICITY BOARD, VIDYUTHI BHAVANAM
PATTOM, THIRUVANANTHAPURAM. 695 001.
4. EXECUTIVE ENGINEER
ELECTRICAL DIVISION, VIDYUTHI BHAVANAM
MANJERI-676 121.
BY SRI.K.S.ANIL, SC, KSEB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-08-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).25300/12
APPENDIX
PETITIONER'S EXHIBITS:
P1:TRUE PHOTOCOPY OF THE PAGE NO.10 OF THE SERVICE BOOK OF THE
PETITIONER.
P2:TRUE COPY OF THE LETTER DATED 2.5.2009 ISSUED BY THE 3RD
RESPONDENT TO THE 4TH RESPONDENT.
P3:TRUE COPY OF THE LETTER DATED 19.8.2009 ISSUED BY THE 4TH
RESPONDENT TO THE 3RD RESPONDENT.
P4:TRUE COPY OF LETTER DATED 8.10.2009 ISSUED BY THE 3RD RESPONDENT
TO THE PETITIONER.
P5:TRUE COPY OF THE BOARD ORDER DATED 5.6.2012.
P6:TRUE COPY OF THE APPEAL DATED 2.4.2012 SUBMITTED BY THE PETITIONER
BEFORE THE SECOND RESPONDENT.
//TRUE COPY//
P.A.TO JUDGE
C.T. RAVIKUMAR, J.
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W.P.(C). No.25300 OF 2012
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Dated this the 1st day of August, 2014
JUDGMENT
The petitioner claims to be a retiree from the service of the Kerala State Electricity Board. The captioned writ petition has been filed seeking quashment of Ext.P4 and issuance of a writ of mandamus commanding the first respondent to sanction and disburse monthly pension, commuted value of pension and gratuity under the Payment of Gratuity Act, 1972. The petitioner entered into the service of the KSEB as L.D.Clerk on 26.8.1968. While working so, he applied for leave without allowances for taking up employment abroad. It is stated in paragraph 2 of the writ petition that leave was sanctioned for five years as per board order No.EA III/14209/80 dated 3.1.1981 and the petitioner entered on leave on 22.5.1980. The learned counsel for the petitioner submitted that Ext.P6 would reveal that the date shown in paragraph 2 is incorrect and leave was W.P.(C).25300/12 2 sanctioned to the petitioner as per board order bearing the same number dated 31.5.1980. There is no case for the petitioner that the leave sanctioned as per board order dated 31.5.1980 was subsequently extended. However, it is the case of the petitioner that he sought for an extension but no documents whatsoever to show that it was so applied, if at all applied, prior to the expiry of the leave originally granted, were not produced in this writ petition. Even if such a document is produced, the question to be considered is whether the petitioner was granted extension beyond the period for which he was granted sanction as per order dated 31.5.1980. After the date of superannuation viz., 31.7.2002, the petitioner submitted a representation for disbursement of retiral benefits. That application was rejected as per Ext.P4. It is aggrieved by Ext.P4 that the captioned writ petition has been filed with the aforementioned reliefs.
2. I have heard the learned counsel for the petitioner and the learned standing counsel. A statement has been filed on behalf of the W.P.(C).25300/12 3 third respondent. It is stated therein that the petitioner is not eligible for pensionary claims and he is not eligible to get gratuity as per clause 4 of Payment of Gratuity Act, 1972.
3. Evidently, the petitioner who entered into service of KSEB on 26.8.1968 as LDC was granted LWA for taking up employment abroad as per Board Order dated 31.5.1980. By that time, he had put in about 12 years service under the KSEB. Obviously, he entered on leave prior to the sanctioning of LWA i.e., on 22.5.1980. Ext.P2 would reveal that the petitioner had earlier requested for extension of the leave for 5 years but the same was not granted. It is also specifically stated therein that even thereafter, till 31.7.2002, the petitioner had not turned up for re-joining duty. Thus even if it is taken that the petitioner had applied for extension of the leave for 5 years i.e., from the date of expiry of the leave period originally granted as per board order dated 31.5.1980, there is no case for the petitioner that thereafter he sought for and obtained any extension. In W.P.(C).25300/12 4 such circumstances, taking note of the fact that leave was granted only for 5 years as per board order dated 31.5.1980, the petitioner who entered on leave on 22.5.1980 should have rejoined duty on or before the date of expiry of the original leave period. In view of the undisputed position that the petitioner had not applied for further extension and never reported for duty prior to 31.7.2002 viz., the date of superannuation I am of the view that the respondents cannot be faulted for taking the prolonged period of absenteeism as abandonment of service. The facts expatiated above would reveal that the petitioner who was granted LWA for five years for taking up employment abroad as per Board letter dated 31.5.1980 admittedly, entered on leave from 22.5.1980 that is, much prior to the grant of leave and never returned and reported for duty till the date of his retirement on superannuation had he continued in service viz., 31.7.2002. The mere assertion of the petitioner that prior to the expiry of the original period of leave granted he applied for extension cannot have any impact whatsoever, in view of the admitted fact that no W.P.(C).25300/12 5 extension of leave was granted to the petitioner and he had never reported for joining duty at any time prior to 31.7.2002. In fact, this writ petition carrying the aforesaid prayers was filed after more than a decade since the said date of retirement on superannuation. Exts.P3 and P4 also cannot improve the situation. The petitioner who was employed in better pastures for more than two decades is not at all justified in seeking pensionary benefits after a further period of more than a decade from 31.7.2002, the date of his retirement on superannuation had he continued in service. In such circumstances, I do not find any illegality in the conclusion arrived at by the respondents that the petitioner had abandoned his service. A person who abandoned the service cannot seek for pensionary benefits. In fact, he is ineligible to claim pensionary benefits in the light of the settled position of law. What has been taken by the respondents in Ext.P4 is only a conclusion permissible in the facts and circumstances. In such circumstances, I do not find any reason to interfere with Ext.P4. The petitioner is not entitled to pension and commuted value W.P.(C).25300/12 6 of pension. The question whether the petitioner is entitled to gratuity under the Payment of Gratuity Act still survives consideration. Admittedly, prior to the availing of LWA, the petitioner had rendered almost 12 years service under the KSEB. When the admitted position is that he had rendered more that a decade service, the respondents are bound to consider the entitlement of the petitioner for gratuity. In such circumstances, while declining the relief relating pension and other retiral benefits, there will be a direction to the respondents to consider the entitlement of the petitioner for gratuity under the Gratuity Act for the service rendered by him since 1968 to 1980. This shall be considered expeditiously and in accordance with law, at any rate, within a period of three months from the date of receipt of a copy of this judgment.
Sd/-
C.T. RAVIKUMAR
(JUDGE)
spc/
W.P.(C).25300/12 7
C.T. RAVIKUMAR, J.
W.P.(C).25300/12 8
JUDGMENT
September,2010