Kerala High Court
Tony J Alapatt vs Kerala State Electricity Board on 24 November, 1978
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY, THE 20TH DAY OF DECEMBER 2017 / 29TH AGRAHAYANA, 1939
WP(C).No. 5440 of 2015
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PETITIONER :
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TONY J ALAPATT, ALAPATT HOUSE,
ST. THOMAS ROAD, KURIACHIRA,
THRISSUR - 680 006.
BY ADV.SRI.C.P.MOHAMMED NIAS
RESPONDENTS :
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1. KERALA STATE ELECTRICITY BOARD
VUDHUTHI BHAVAN, PATTAOM PALACE,
THIRUVANANTHAPURAM -695 004,
REPRESENTED BY ITS CHAIRMAN.
2. CHIEF ENGINEER (ELE) GENERAL
KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVAN,
PATTOM PALACE, THIRUVANANTHAPURAM - 695 004.
3. CHIEF ENGINEER (HUMAN RESOURCES MANAGEMENT)
KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVAN,
PATTOM PALACE, THIRUVANANTHAPURAM - 695 004.
R1 TO R3 BY SRI.K.S.ANIL, SC,
BY SMT.ANEETHA A.G., SC,
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 20-12-2017,THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
bp
WP(C).No. 5440 of 2015 (D)
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APPENDIX
PETITIONER(S)' EXHIBITS :
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EXHIBIT-P1- TRUE COPY OF THE REPORT OF TRANSFER OF CHARGE DATED
24/11/1978 ISSUED BY THE ASSISTANT ELECTRICAL INSPECTOR
IN RESPECT OF THE PETITIONER.
EXHIBIT-P2- TRUE COPY OF THE MEMO DATED 01/03/1995
EXHIBIT-P3- TRUE COPY OF THE LETTER DATED 16/01/1996 SENT BY THE
PETITIONER TO THE 2ND RESPONDENT.
EXHIBIT-P4- TRUE COPY OF THE LETTER DATED 04/04/1996 SENT BY THE
PETITIONER TO THE 2ND RESPONDENT.
EXHIBIT-P5- TRUE COPY OF THE CERTIFICATE DATED 27/07/1995 ISSUED BY
THE MEMBER(ELECTRICITY) OF THE IST RESPONDENT IN FAVOUR
OF THE PETITIONER.
EXHIBIT-P6- TRUE COPY OF G.O(P) 266/2002/FIN. DATED 02/05/2002
ISSUED BY THE GOVERNMENT OF KERALA.
EXHIBIT-P7- TRUE COPY OF THE B.O(CM) 1234/2002 DATED 07/09/2002
ISSUED BY THE IST RESPONDENT.
EXHIBIT-P8- TRUE COPY OF THE APPLICATION DATED 07/12/2011 SENT BUY
THE PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT-P9- TRUE COPY OF THE ORDER DATED 04/04/2012 PASSED BY THE
3RD RESPONDENT.
EXHIBIT-P10- TRUE COPY OF THE REPRESENTATION DATED 24/06/2012
SUBMITTED BY THE PETITIONER TO THE CHAIRMAN OF THE IST
RESPONDENT.
EXHIBIT-P11- TRUE COPY OF THE LETTER DATED 03/02/2014 SENT BY THE
PETITIONER TO THE CHAIRMAN OF THE IST RESPONDENT BOARD.
EXHIBIT-P12- TRUE COPY OF THE APPLICATION DATED 07/03/2014 SUBMITTED
BY THE PETITIONER TO THE PUBLIC INFORMATION OFFICER OF
THE IST RESPONDENT.
EXHIBIT-P13- TRUE COPY OF THE REPLY DATED 20/03/2014 FURNISHED BY THE
PUBLIC INFORMATION OF THE 3RD RESPONDENT.
WP(C).No. 5440 of 2015 (D)
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EXHIBIT-P14- TRUE COPY OF THE ORDER OF THE IST RESPONDENT DATED
12/03/2012.
EXHIBIT-P15- TRUE COPY OF THE LETTER DATED 10/03/1972 SENT BY THE
CHIEF ELECTRICAL INSPECTOR TO THE DISTRICT TREASURY
OFFICER.
EXHIBIT-16- COPY OF THE LETTER DT 13/2/1978 SENT BY THE CHIEF
ENGINEER (ELECTRICAL) OF THE BOARD TO THE DEPUTY
ACCOUNTANT GENERAL.
RESPONDENT'S EXHIBITS : NIL.
//TRUE COPY//
P.S. TO JUDGE
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P.V.ASHA, J.
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W.P(C) No.5440 of 2015-D
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Dated this the 20th day of December, 2017
JUDGMENT
The petitioner entered service under the Kerala State Electricity Board (`KSEB' for short) on 27.03.1965 as Junior Engineer. He was granted further promotion as Assistant Executive Engineer. While working as Assistant Executive Engineer, he worked as Junior Electrical Inspector in the office of the Chief Electrical Inspectorate on deputation from 19.10.1969 to 23.11.1978. According to him, the pension contribution and salary were remitted to Treasury under the "KSEB Working Head", during the period from 19.10.1969 to 24.11.1978 when he worked on deputation.
2. He availed leave without allowance for employment abroad from 24.11.1978 onwards after rejoining the KSEB on repatriation from the office of the Chief Electrical Inspectorate. He was granted leave without allowance for a period of 7 years for working abroad. Thereafter it was extended for a period of 2 years and again extended for the period upto 25.11.1993. The last spell of leave was as per order dated 24.6.1989 in which it was ordered that no further leave would be granted and in case he did not report for duty, his services will be terminated automatically. The W.P(C) No.5440 of 2015-D 2 petitioner submits that he had anticipated extension of a maximum period of leave without allowance for a period of 20 years. As per Ext.P2 letter dated 1.3.1995, the Chief Engineer (Ele) General directed the petitioner to report for duty within 10 days from the date of receipt of the memo, failing which his services would be terminated without further notice. It was stated in that memo that extension of leave without allowance for a period of 5 years till 26.11.1993 sanctioned to the petitioner had already expired on 25.11.1993. According to the petitioner, he did not receive that letter in time. As and when he came to know about Ext.P2 letter, he submitted Ext.P3 application on 16.1.1996 requesting the Chief Engineer to grant him leave for 5 years more w.e.f 26.11.1993, saying that the maximum period of leave without allowance had since been increased from 15 to 20 years. He also requested to condone the absence for the period from 26.11.1993. By Ext.P4 letter dated 4.4.1996, the petitioner informed the Chief Engineer that he was not able to join duty after the expiry of leave and the memo issued on 1.3.1995 came to his knowledge only after few months. He therefore requested to allow him to retire from service w.e.f 25.11.1993. According to the petitioner, he retired from service abroad with the Qatar Electricity and Water Corporation and returned to India in October, 2002 and thereafter he W.P(C) No.5440 of 2015-D 3 came to know about the Board Order issued on 7.9.2002 on the basis of G.O (P).No.266/2002/Fin. dated 2.5.2002 by which the Government had allowed those who were on leave without allowance to rejoin duty on expiry of the sanctioned leave in full or one year before attaining superannuation, in case they desired to do so. The petitioner submits that Ext.P6 Government Order was adopted by the Board as per order dated 7.9.2002, i.e Ext.P7 order. On coming to know about Ext.P7 order, petitioner submitted Ext.P8 representation and requested to release his pensionary benefits. By Ext.P9 order, the Chief Engineer rejected his request in which it was stated that during the 32 years from the date of entry in service, the petitioner had worked hardly for 4 years and 6 months in the KSEB and he served in other institutions for about 20 years and continued to serve abroad. The Chief Engineer stated that the service rendered in the KSEB was for the period from 27.03.1965 to 18.10.1969. He was on deputation in Electrical Inspectorate for a period of 9 years and one month and it was stated that during that period no leave salary or pension contribution was received by the Board and he went on leave without allowance for employment abroad in the year 1978 and his date of retirement was 31.1.1997 and he did not report for duty even on 31.1.1996 as he was continuing in the foreign service. The W.P(C) No.5440 of 2015-D 4 petitioner thereafter submitted Exts.P10 and P11 representations before the Chairman. By Ext.P14 order, the Chairman rejected the request of the petitioner. The writ petition was filed in the above circumstances challenging the orders Exts.P9 and P14 and for a direction to release his pensionary benefits for a period of 13 years and 7 months, including the period under deputation.
3. The respondents have filed a counter affidavit stating that the petitioner availed leave without allowance immediately after he rejoined after deputation from Electrical Inspectorate. The leave without allowance availed by him expired on 25.11.1993. Even though the petitioner had requested for extension of leave by 2 years, anticipating extension of maximum period of leave, the Government enhanced the maximum period of leave without allowance that can be availed by an employee for taking up employment abroad as 20 years vide G.O(P) No.169/96/Fin dated 5.2.1996. As on 25.11.1993 the petitioner had availed maximum leave without allowance which was permissible. It is also stated that when leave without allowance was sanctioned as per order dated 24.6.1989 it was specifically stated that in case the employee does not return to duty immediately on expiry of the leave sanctioned, his services would stand automatically W.P(C) No.5440 of 2015-D 5 terminated and accordingly on expiry of leave, the petitioner was treated to have abandoned service. The respondents had issued memo dated 25.3.1995-Ext.P2 by registered post directing him to report for duty to which there was no response. It is stated that in that registered notice that in case he did not report for duty his service would stand terminated without further notice. The request of the petitioner for a further period of leave was submitted on 16.01.1996. Regarding the request for voluntary retirement, it is stated that qualifying service of 20 years is necessary for a person to retire voluntarily as per Rule 56 of Part III KSR and he had to give notice in writing to the appointing authority at least 3 months before the intended date of retirement. The leave without allowance sanctioned under appendix XIIA of Part I KSR does not count as qualifying service for pension.
4. The petitioner has filed a reply affidavit stating that the respondents did not consider his request for voluntary retirement.
5. Heard the learned counsel on both sides.
Admittedly, leave without allowance sanctioned was only for the period from 23.11.1978 to 25.11.1993. Petitioner was very well aware of the fact that he had to join duty on or before 26.11.1993. He chose to submit an application for further extension only in the year 1996 saying that W.P(C) No.5440 of 2015-D 6 Government had issued orders enhancing the maximum period of leave without allowance for employment abroad to 20 years. That application itself was more than 2 years after the expiry of the leave already sanctioned to petitioner. The petitioner was granted leave specifically informing that his services would be terminated in case he did not report for duty after expiry of the leave. Moreover Ext.P2 notice was issued to petitioner in March 1995 directing him to report for duty within 10 days failing which his services would be terminated. Thereafter petitioner by Ext.P4 letter dated 4.4.1996 requested for further extension of leave for 5 more years from 26.11.1993, after condoning his absence from 26.11.1993. In this letter petitioner admitted that he received Ext.P2 letter dated 1.3.1995 after 'a few months' and hence he could not report for duty. Even after that 'few months' he chose to make a request only by way of Ext.P4 letter after more than a year, that too for voluntary retirement. From the averments in the writ petition it is clear that petitioner was peacefully continuing in the foreign country on employment till his retirement there in the year 2002 and he chose to make a further request to respondents in the year 2011 by submitting Ext.P8 representation on 07.12.2011, for his pensionary benefits. Neither in Ext.P2 nor in Ext.P4, petitioner requested to allow him to rejoin W.P(C) No.5440 of 2015-D 7 duty. Apparently he was busy with serving the foreign employer. It was much after his retirement that he chose to make a further request to the respondents by seeking payment of his pensionary benefits, after abandoning service under KSEB from 25.11.1993 onwards, when the date of his superannuation under the respondents was on 31.01.1997.
6. The circumstances being so, the action of the respondents cannot be said to be illegal. A person who abandoned service is not entitled to either voluntary retirement or pensionary benefits. As rightly pleaded and contended on behalf of the respondents, petitioner does not have any legal right to seek voluntary retirement and seek pensionary benefits, even assuming that his service on deputation was liable to be reckoned.
7. Even though the learned counsel for the petitioner relied on the judgment of the Apex Court in George K.P v. Law Secretary [2009 (1) KHC 832], I find that the circumstances arising in this case are entirely different. That was a case where a person availed leave without allowance prior to 16.12.1983 and it was held that he was entitled to get the service rendered by him prior to that date reckoned, in accordance with the rules which prevailed at the time when he was granted leave. That judgment does not help the petitioner in any manner. Even under G.O (P) 274/70/Fin. W.P(C) No.5440 of 2015-D 8 dated 29.04.1970, which prevailed at the time when petitioner was granted leave, the period during which he availed leave was not liable to be reckoned for pension. The respondents have stated that the petitioner had worked in the KSEB only for a period of 4 years and 6 months. He did not have the qualifying service for voluntary retirement also, even assuming that the period of deputation was liable to be reckoned. Therefore, his contention that the respondents ought to have considered his claim for voluntary retirement is unsustainable. A person who worked in a foreign country, who did not choose to join duty on expiry of leave and who chose to seek such benefits 13 years after the normal date of his superannuation does not deserve any equitable consideration also from this Court.
In the above circumstances, I do not find any illegality in the orders impugned and hence there is no reason to interfere with the orders Exts.P9 or P14. The writ petition is accordingly dismissed.
Sd/-
(P.V.ASHA, JUDGE) rtr/