Kerala High Court
P.R. Mini vs Life Insurance Corporation Of India on 5 February, 2019
Author: V.G.Arun
Bench: V.G.Arun
WP(C).No. 8486 of 2018 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 05TH DAY OF FEBRUARY 2019 / 16TH MAGHA, 1940
WP(C).No. 8486 of 2018
PETITIONER:
P.R. MINI
AGED 50 YEARS, W/O. DR. T.G SARATHCHANDRAN,RESIDING
AT "SREELAKSHMI", 220-A,SANGEETH NAGAR, THYCAUD
P.O, THIRUVANANTHAPURAM.
BY ADVS.
SRI.LIJU.V.STEPHEN
SMT.INDU SUSAN JACOB
RESPONDENTS:
1 LIFE INSURANCE CORPORATION OF INDIA,
MUMBAI-400 021
2 SENIOR DIVISIONAL MANAGER,
LIFE INSURANCE CORPORATION OF INDIA, DIVISIONAL
OFFICE, PATTOM, TRIVANDRUM 695 004
3 BRANCH MANAGER,
LIFE INSURANCE CORPORATION OF INDIA, CITY BRANCH
OFFICE IV, TRIVANDRUM 695 001
BY ADVS.
SRI.T.V.AJAYAKUMAR
KUM.P.H.RIMJU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
05.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.G.ARUN, JJ.
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W.P.(C) No. 8486 of 2018
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Dated this the 5th day of February, 2019
JUDGMENT
The petitioner is working as Higher Grade Assistant (Programmer) at the City Branch Office, IV, Thiruvananthapuram of the first respondent, Life Insurance Corporation of India. The first respondent had, for the purpose of granting promotion to eligible employees to the post of Assistant Administrative Officer(Programmer/Administration), conducted an interview at the Ernakulam Divisional Office on 18.10.2016. The interview for the post of Assistant Administrative Officer(Programmer), was scheduled at
10.a.m and to the post of Assistant Administrative Officer(Administration) at 2 p.m. Being desirous of appearing for the interview at Ernakulam, the petitioner had sought permission for two days WP(C).No. 8486 of 2018 3 (17.10.2016 & 18.10.2016) from her superior officer, which was granted and noted as 'On Duty'. According to the petitioner, consequent to an accident, she was unable to walk fast and therefore she had travelled to Ernakulam on 17.10.2016 itself and had stayed at a relatives' house. That, due to an exigency at her house at Thiruvananthapuram, the petitioner had to go back to Thiruvananthapuram on 17.10.2016 and had to again return to Ernakulam on 18.10.2016 for attending the interview. On production of the attendance certificate issued by the Divisional Office, Ernakulam, certifying that the petitioner had attended the interview on 18.10.2016, that day was recorded as 'On Duty'. With regard to 17.10.2016, the petitioner was not able to produce any evidence regarding her travel, which according to the petitioner was due to misplacing of the train ticket, the authority entered 17.10.2016 as Extra-Ordinary Leave (EOL). The Writ Petition is filed challenging the proceedings by which 17.10.2016 was marked as EOL in the attendance register and for a direction to the respondents to grant the date of journey i.e, 17.10.2016 taken by the petitioner to attend the interview as 'On Duty' and to refund the salary WP(C).No. 8486 of 2018 4 deducted for the said date, with other consequential benefits. The ancillary prayer in the Writ Petition is to direct the respondents to expunge 'unauthorised absence on 17.10.2016' from the service records of the petitioner and from Ext P16 Inspection Report.
2. The learned counsel for the petitioner placed reliance on Exts P1, P2 & P3 to contend that there was enough evidence before the authorities to prove that the petitioner had attended the interview on 18.10.2016. Based on the relevant TE Rules in the Office Manual of the first respondent, it is contended that outstation employees called for interview should be treated as 'On Duty' for the necessary period of journey between the place of work and the place of interview, irrespective of whether the employee had produced evidence regarding travel on the previous or the next day of the interview. It is further contended that, entry in the attendance register and service records as EOL, entails adverse consequences to the employee concerned and therefore, such entry amounts to a disciplinary action, which cannot be taken without adhering to the requisite procedure. It is also contended that the third respondent is not conferred with any authority to make an EOL entry in WP(C).No. 8486 of 2018 5 the petitioner's service records.
3. The learned counsel for the respondents vehemently opposes the submission made on behalf of the petitioner. It is contended that the petitioner had earlier approached this Court seeking the same relief by filing WP(C) No.12106 of 2017 and that, in the face of stiff opposition, the petitioner was forced to withdraw that Writ Petition. It is contended that the petitioner had deliberately not produced the judgment in W.P(C) No. 12106 of 2017, which by itself is a reason for dismissing the Writ Petition. It is further contended that the Writ Petition is bad for non- joinder of necessary parties and that there is inordinate delay in filing the Writ Petition, inasmuch as, Ext P8 letter is dated 30.11.2016, Ext P12 dated 28.12.2016 and Ext P14 dated 18.3.2017, whereas the Writ Petition was filed only on 12.3.2018. The averment in the Writ Petition regarding the petitioner's journey to Ernakulam on 17.10.2016 and 18.10.2016 is opposed on the ground that no such case was projected by the petitioner in any of her representations submitted before the authority and that the said averment is only an after thought. Placing reliance on Exts P4, P7, P8, P10, P12 and P14, it is contended that enough and more WP(C).No. 8486 of 2018 6 opportunity was granted to the petitioner to either produce proof regarding her travel on 17.10.2018 or to submit leave application for that date. It is pointed out that in spite of repeated requests the petitioner had deliberately refused to either produce proof regarding her travel or even to submit a leave application, which ultimately compelled the authority to treat 17.10.2016 as EOL. Though instances of harassment in the past is attempted to be highlighted by the petitioner and countered by the respondents, by pointing out instances of disciplinary action including EOL on earlier occasions, it is not necessary to consider those submissions, for the purpose of deciding the issue at hand.
4. The relevant Rule in the Office Manual of LIC, with respect to travelling expenses reads as follows:-
a) Outstation candidates will be treated as on duty for the necessary period of to and fro journeys between the nearest test centre and the place of work besides the days of test. Such candidates will be eligible for being treated as on duty and to travelling expenses, wherever payable for the first three attempts only under the Promotion Rules, 1987. While the facilities of being treated as on duty and travelling expenses are restricted to the first three attempts, there is no restriction to the number of attempts an employee can make for passing the test.
b) All the employees called for WP(C).No. 8486 of 2018 7 interview will be treated as on duty on the date of interview. Outstation employees called for interview will be treated as on duty for the necessary period of journey between the place of work and place of interview and will be eligible to Travelling Expenses as per Rules.
5. On a careful scrutiny of the Rule, it is clear that outstation candidates will be treated as 'On Duty' only for 'the necessary period' required for to and fro journeys between the nearest test centre and the place of work. Therefore, it is for the candidate to establish that besides the day of test other days were required, being the necessary period, for reaching and returning from the test centre. As far as the petitioner's case is concerned, the day on which she attended the test (18.10.2016) was treated as 'On Duty' based on Exts P1 & P2 certificates. If the petitioner had travelled on the previous day (17.10.2016), it was for the petitioner to have established that fact by producing convincing proof. In the absence of such proof, the authority could not have treated 17.10.2016 as the necessary period taken by the petitioner for her to and fro journey. It was in that context that the petitioner was required to either produce proof regarding her journey on 17.10.2016 or to submit an application for leave for that WP(C).No. 8486 of 2018 8 day. The petitioner having fail to produce proof regarding her travel and having refuse to submitting leave application, cannot claim that the authority should have granted 'On Duty' for 17.10.2016 also.
6. The next question to be considered is whether, in the event of the petitioner failing to produce evidence regarding her travel on the previous day for the purpose of attending an interview and refusing to submit an application for leave for that day, it was open for the authorities to have treated that day as EOL. For this purpose, it would be appropriate to refer to the relevant provision contained under the Office Manual, which reads as follows:-
VII.EXTRA-ORDINARY LEAVE(REG.65):
a) EOL is normally granted when no other leave is due.
b) The Competent Authority has every right to treat any period of unauthorised absence/ overstayal as EOL.
c) Duration of EOL shall not exceed in exceptional circumstances beyond 3 months on any occasion and 12 months during the entire service period. EOL exceeding 12 months may be granted on grounds of illness. Where the EOL exceeds 90 days at a stretch or 365 days during the entire period of service or where it exceeds 365 days for reasons other than own sickness then refer to the Competent Authority as per Schedule IV OF Staff WP(C).No. 8486 of 2018 9 Regulations. Half day EOL, should not normally be granted.
7. A reading of the above mentioned clause makes it clear that even though EOL is normally granted when no other leave is due, the competent authority is conferred with every right to treat any period of unauthorised absence/ overstayal as EOL. In the instant case, the petitioner having failed to produce necessary evidence for the purpose of treating 17.10.2016 as 'On Duty' and having also failed to apply for leave, her absence could have been treated as unauthorised absence. That being the case, it was well within the power of the competent authority to have treated 17.10.2016 as EOL.
8. The contention of the learned counsel for the petitioner that treating 17.10.2016 as EOL amounted to disciplinary action without notice cannot be countenanced for the reason that the authority had acted in terms of the prescription under the Office Manual, by converting unauthorised absence into EOL and thereby, had in fact, avoided disciplinary proceedings being taken against the petitioner. The decision of the Apex Court in State of Punjab v Singla (AIR 2009 SC 1149) relied on by the WP(C).No. 8486 of 2018 10 learned counsel, do not apply to the facts of the instant case. That was a case where the employee was proceeded against for unauthorised absence and a punishment imposed on him. Subsequently, his period of absence was treated as EOL. Contention was raised that by subsequently treating the period as EOL, the punishment earlier imposed was wiped out. In that context, it was held by the Apex Court that the assumption of the courts below that when an order is passed according Extra-Ordinary Leave for the period of absence, it will have the effect of effacing or erasing the punishment already imposed, is incorrect and is a serious error of law. The other contention put forward by the learned counsel that, the conversion of 17.10.2016 as EOL was not done by the competent authority, can only be answered in the negative, in the absence of proof as to who is the competent authority and also as to which authority had actually directed 17.10.2016 to be entered as EOL. Further, the series of communications issued by the first respondent would also show that the EOL entry was made by the competent authority.
9. I find considerable force in the contention urged by WP(C).No. 8486 of 2018 11 the learned counsel for the respondent that there was inordinate delay on the part of the petitioner to raise a challenge against the impugned actions. As stated earlier, Ext P8 letter is dated 30.11.2016, Ext P12 dated 28.12.2016 and Ext P14 dated 18.3.2017, whereas the Writ Petition was filed only on 12.3.2018. For the reasons mentioned above, the petitioner is not entitled for any relief and consequently, the Writ Petition is dismissed.
Sd/-
V.G.ARUN, JUDGE cms WP(C).No. 8486 of 2018 12 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ATTENDANCE CERTIFICATE ISSUED BY THE LIC DIVISIONAL OFFICE ERNAKULAM FOR ATTENDING THE AAO(IA) ON 18-10-2016 EXHIBIT P2 A TRUE COPY OF THE ATTENDANCE CERTIFICATE ISSUED BY THE LIC DIVISIONAL OFFICE ERNAKULAM FOR ATTENDING THE AAO(PROG) ON 18-10- 2016 EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION DATED 31-10-2016 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT EXHIBIT P4 A TRUE COPY OF THE COMMUNICATION DATED 02-11-2016 RECEIVED BY THE PETITIONER FROM THE OFFICE OF THE 3RD RESPONDENT EXHIBIT P5 A TRUE COPY OF THE COMMUNICATION DATED 26-11-2016 RECEIVED BY THE PETITIONER FROM THE OFFICE OF THE 3RD RESPONDENT EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION DATED 28-11-2016 MADE BY THE PETITIONER TO THE RESPONDENT OFFICE EXHIBIT P7 A TRUE COPY OF THE COMMUNICATION DATED 28-11-2016 RECEIVED BY THE PETITIONER FROM THE 3RD RESPONDENT EXHIBIT P8 A TRUE COPY OF THE COMMUNICATION DATED 30-11-2016 RECEIVED BY THE PETITIONER FROM THE 3RD RESPONDENT.
EXHIBIT P9 A TRUE COPY OF THE REPRESENTATION DATED 07-12-2016 MADE BY THE PETITIONER TO RESPONDENT OFFICE EXHIBIT P10 A TRUE COPY OF THE COMMUNICATION MADE TO THE PETITIONER FROM THE RESPONDENTS OFFICE DATED 09-12-2016.WP(C).No. 8486 of 2018 13
EXHIBIT P11 A TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER TO THE RESPONDENTS DATED 15-12-2016 EXHIBIT P12 A TRUE COPY OF THE COMMUNICATION DATED 28-12-2016 FROM THE RESPONDENTS OFFICE TO THE PETITIONER.
EXHIBIT P13 A TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER TO THE 2ND RESPONDENT DATED 04-01-2017 EXHIBIT P14 A TRUE COPY OF THE REPLY DATED 18- 03-2017 GIVEN TO EXHIBIT P13 REPRESENTATION EXHIBIT P15 A TRUE COPY OF THE DRAFT AUDIT REPORT OF THE L.I.C, BRANCH OFFICE, TRIVANDRUM WITH REGARD TO THE PETITIONER'S CLAIM ON TRAVEL EXPENSE BILL FOR THE AUDIT YEAR 2016-2017 EXHIBIT P16 A TRUE COPY OF THE INSPECTION REPORT WITH REGARD TO THE PETITIONER'S ISSUE S.R.NO. 537880 EXHIBIT P17 COPY OF THE JUDGMENT IN WP(C) NO.12106/ 2017 DATED 9.3.2018 ON THE FILES OF THIS COURT.
RESPONDENTS EXTS EXT R2(A) COPY OF EXTRACT OF RAILWAY RESERVATION PARTICULARS RECEIVED FROM SR DCM/TVC SOUTHERN RAILWAY ALONG WITH THE FORWARDING LETTER DTD 5.10.2017 ADDRESSED TO THE 2ND RESPONDENT.
/TRUE COPY/ P.S.TO JUDGE cms