IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929 OP.No. 21971 of 2001(N) ----------------------- PETITIONER: ------------ K.N.KRISHNANKUTTY, S/O.NARAYANAN, KUNNATHUCHIRA, KOTTAYAM. BY ADV. SRI.K.B.PRADEEP RESPONDENTS: ------------- 1. THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE EXECUTIVE DIRECTOR (VIGILANCE) AND SECRETARY, KERALA STATE ROAD TRANSPORT BHAVAN, THIRUVANANTHAPURAM. BY ADV. SRI.T.RAVIKUMAR, SC, KSRTC SRI.JOHNSON P.JOHN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP NO.21971/2001 ORDER ON CMP NO.35771/2001 IN OP NO.21971/2001 DISMISSED Sd/- 19.2.2008 S.SIRI JAGAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF THE LETTER DATED 2.1.1990 SENT BY THE DTO, KOTTAYAM TO THE PETITIONER. EXT. P2: COPY OF THE APPLICATION DATED 22.11.1999 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT. P3: COPY OF THE ORDER DATED 27.7.1999 ISSUED BY THE 2ND RESPONDENT. EXT. P4: COPY OF THE MEMORANDUM OF APPEAL DATED 7.12.1999 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. EXT. P5: COPY OF THE ORDER DATED 30.6.2000 ISSUED BY THE 1ST RESPONDENT. EXT. P6: COPY OF THE REVISION DATED FILED BY THE PETITIONER BEFORE THE APPELLATE TRIBUNAL. EXT. P7: COPY OF THE ORDER DATED 2.6.2001 PASSED BY THE APPELLATE TRIBUNAL IN EXT.P6. /TRUE COPY/ P.A. TO JUDGE JP S.SIRI JAGAN, J. ======================= O.P. No. 21971 of 2001 (N) ======================= Dated this the 19th day of February, 2008 JUDGMENT The petitioner joined the service of the KSRTC in 1975. He applied for Leave Without Salary and Allowances to accept employment abroad for 5 years from 18.3.1985 to 17.3.1990, which was sanctioned. The extension of leave for further period of 5 years was also sanctioned. After expiry of that period, petitioner is stated to have applied for extension for a further period of 5 years from 18.3.1995. However, that was not sanctioned. On 22.11.1999, the petitioner sought to rejoin duty and submitted Ext.P2 request for that purpose. However, he was informed that he had already been removed from service pursuant to disciplinary action for unauthorised absence with effect from 18.3.1995. Petitioner's appeal before the Managing Director was rejected by Ext.P5 order and his revision before the Tribunal was also rejected by Ext.P6 order. Petitioner is aggrieved by Exts. P3 P5 and P7 in this original petition. 2. Petitioner's contention is that, petitioner was not O.P. No. 21971/2001/N -2- issued with any notice of the disciplinary proceedings and therefore, the entire disciplinary proceedings are in violation of principles of natural justice. Petitioner submits that Ext.P1 communication to the petitioner was served on him in his address abroad, as is evident from Ext.P1 itself. Therefore, the respondents were aware of his address and therefore, there was no justification in not issuing notice to him in that address. The petitioner therefore, submits that the entire disciplinary proceedings are vitiated and the impugned orders are liable to be quashed. He also submits that the period when he was kept out of service shall be treated as duty and now that he was already attained age of superannuation he should be given retirement benefits, accordingly. 3. The learned standing counsel for the corporation stoutly opposes the prayer. According to him, as is evident from Ext.P5 order, the petitioner did not respond to the letter issued to him on 02.01.1990 and he did not furnish his employer's address. Therefore, the notice of enquiry was published in a news paper and it is only thereafter disciplinary proceedings were proceeded with exparte. He further submits that as the earlier period of leave was sanctioned with a specific condition that on the expiry O.P. No. 21971/2001/N -3- of the leave he shall rejoin duty and since he had not rejoined duty after the expiry of the leave period, he stood automatically terminated from service. On these grounds the standing counsel opposes the prayer of the petitioner. 4. I have heard the rival contentions in detail. 5. Unfortunately, the corporation has not filed any counter affidavit. There is nothing on record to show that any notice has been issued to the petitioner in respect of the disciplinary proceedings in the foreign address of the petitioner known to the corporation itself as is evident from Ext.P1 although in Ext.P5, it is stated that petitioner did not respond to letter sent to him on 02.01.1990, it is stated that the notice was published in the news paper 'Janmabhoomi'. As is common knowledge, that news paper has very limited circulation. That being so, I am not satisfied that the disciplinary proceedings were after due notice to the petitioner. Having initiated disciplinary proceedings, the same cannot be held to be valid without proving that in respect of that disciplinary proceedings the petitioner was put on notice. In the absence of proof of service notice to the petitioner, the disciplinary proceedings are liable to be interfered with. The impugned orders cannot therefore be sustained. O.P. No. 21971/2001/N -4- Accordingly, Exts. P3 and P5 orders are quashed. 6. However, I am not satisfied that the petitioner is entitled to monetary benefits for the period when he was kept out of service. As per rules applicable when petitioner applies for extension of leave, it was incumbent on him to see that leave was sanctioned before he proceeds on leave. The petitioner himself has no case that leave was sanctioned. In fact nothing is available on record to show that the petitioner had applied for leave, although he avers so in original petition. Therefore, I am not inclined to direct the corporation to pay the petitioner arrears of service benefits. However, the period from 18.3.2000 till the date of retirement shall be counted as on duty only for the purpose of computation of qualifying service for pension. Petitioner would not be entitled to arrears of pension. Petitioner would be paid pension from next month onwards. Orders in this regard shall be passed within a period of two months from the date of receipt of a copy of this judgment. The original petition is disposed of as above. S.SIRI JAGAN, JUDGE jp