IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 OP.No. 18291 of 1999(C) ----------------------- PETITIONER(S): --------------- 1. MOIDEEN, S/O.MAMMED, EX-WELDER GRADE I, PUTHUVACHOLA HOUSE, THURAVUMKARA P.O., KANJOOR, ERNAKULAM DISTRICT. ADDITIONAL PETITIONERS: 2. NABEESA, W/O.LATE MOIDEEN, PUTHUVACHOLA HOUSE, THURAVUMKARA P.O., KANJOOR, ERNAKULAM DISTRICT. 3. KHADHIJA KOYA, D/O.LATE MOIDEEN, ARIMPASSERY HOUSE, MALAYIDAMTHURUTHU, ERNAKULAM. 4. SHOBHITHA, D/O.LATE M.MOIDEEN, PUTHUVACHOLA HOUSE, THURAVUMKARA P.O., KANJOOR, ERNAKULAM DISTRICT. 5. SIMI, D/O.LATE M.MOIDEEN, PUTHUVACHOLA HOUSE, THURAVUMKARA P.O., KANJOOR, ERNAKULAM DISTRICT. (ADDL. PETITIONERS IMPLEADED AS PER ORDER IN I.A NO. 539/2008) BY ADV. SRI.THOMAS ANTONY SRI.K.M.JAMALUDHEEN RESPONDENT(S): --------------- 1. THE SECRETARY, KSEB, VAIDHUTHI BHAVAN, THIRUVANANTHAPURAM. 2. THE EXE. ENGINEER, K.C.DIVISION, KSEB, SEETHATHODE. ADV. SRI.C.K.KARUNAKARAN, SC, KSEB THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.18291/99. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE CERTIFICATE DTD.2.3.76. P2. COPY OF THE ORDER DTD.30.7.77. P3. COPY OF THE LEAVE APPLICATION. P4. COPY OF THE LETTER DTD.12.11.97. P5. COPY OF THE ORDER OF R1 DTD.6.10.98. P6. COPY OF THE REPRESENTATION DTD.14.10.98 TO R1. P7. COPY OF THE LAWYER NOTICE DTD.15.2.99. P8 COPY OF THE LETTER DTD.19.2.99 OF R2. P9. COPY OF THE ORDER OF R1 DTD.18.6.99. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No.18291 of 1999 ================== Dated this the 17th day of November, 2008 J U D G M E N T The 1st petitioner joined service of the Kerala State Electricity Board on 15.12.1962 as Welder Grade II in the Sabarigiri Project Dam Division, at Pamba. Thereafter, he was transferred to Vadasserikkara in the same Project. While he was working at Vadasserikkara, he was promoted as Welder Grade I on 15.5.1974, which promotion was regularised in June, 1975. The 1st petitioner applied for leave without allowances for five years from 14.8.1981 for employment abroad, apparently. However, in September 1983, he wanted to cancel the unavailed portion of the leave and join duty. Accordingly, he went to Vadasserikkara office from where he understood that the office at Vadasserikkara was closed down and it was shifted to Pallam. When the 1st petitioner reported at Pallam he was not allowed to join duty on the ground that the service book of the petitioner is not traceable. He states that he was asked to report at Thiruvananthapuram. Thereafter, on the advice of his friends, he applied for leave for the period from 14.8.1981 to 31.1.1997 also, on which date his superannuation date fell. The same was not considered. The 1st petitioner filed Ext.P4 application for o.p.18291/99 2 regularisation of leave for the period from 14.8.1981 till 31.1.1997. Since nothing was done on Ext.P4, the 1st petitioner filed O.P.No.22288/1997, in which Ext.P4 was directed to be considered and disposed of. Since the same was not done, the 1st petitioner filed CCC No.435/1998 in which it was reported that orders were passed on 6.10.1998. Thereafter, Ext.P5 order dated 6.10.1998 was supplied to the 1st petitioner, wherein his claim was rejected on the ground that he was unauthorisedly absent for the period from 14.8.1981 to 31.1.1997. The 1st petitioner's representation for review of Ext.P5 order was also not considered. Thereafter, he sent Ext.P7 advocate notice to the Secretary of the KSEB, wherein it was stated that he, on the information received from his trade union that his service records have been traced, went to the Engineers Office at Seethathode, where he saw his service records. By Ext.P8 notice, he was directed to contact the office of the Executive Engineer, Seethathode to regularise his leave applications. In spite of all this, by Ext.P9 dated 18.6.1999, the 1st petitioner was informed that the absence of the petitioner from duty for the period from 14.8.1981 to 31.1.1997 is treated as unauthorised absence and his pensionary claims would be settled accordingly. The 1st o.p.18291/99 3 petitioner filed the original petition challenging Exts.P5 and P9 orders. 2. During the pendency of this original petition, the 1st petitioner died and his legal heirs have come on record as additional petitioners in the original petition for prosecuting the original petition further. 3. The petitioners' contention is that the 1st petitioner is not at fault for the loss of his service book and service records. According to the petitioners, the 1st petitioner filed application for leave at the appropriate time. The 1st petitioner was made to run from pillar to post for rejoining duty after coming back in 1983. That being so, the petitioners would contend that 1st petitioner's leave for the period from 14.8.1981 till 31.1.1997 should be regularized and pensionary benefits of the 1st petitioner should be settled accordingly. 4. Although no counter affidavit has been filed, the learned Standing Counsel for the Electricity Board, relying on Ext.P4 order would try to support Exts.P5 and P9. According to the standing counsel, the 1st petitioner himself admits in the original petition that he went on leave without allowances, without getting the leave sanctioned. It is pointed out that in o.p.18291/99 4 paragraph 3 of the original petition the averment of the 1st petitioner was that after the submission of Ext.P3 leave application, the 1st petitioner was told that his leave application would be sanctioned and in anticipation that the leave would be sanctioned, the 1st petitioner availed of leave from 14.8.1981 to 13.8.1986. The learned Standing Counsel would further point out that if the 1st petitioner was not allowed to join duty on reporting for duty at Pallam in 1983, he should have reported before the Head office at Thiruvananthapuram, which the 1st petitioner has not cared to do. According to him, the service records of the 1st petitioner are not traceable, which must have been lost during the shifting of the office from Vadasserikkara to Pallam. It is further submitted that as stated in Ext.P9, the 1st petitioner's period of service from 14.8.1981 to 31.1.1997 has to be treated as unauthorized absence and pensionary claims would be settled accordingly. 5. I have considered the rival contentions in detail. 6. I am of the considered opinion that both parties are at fault. The Electricity Board is expected to have all records of their employees at all times. Admittedly, they are not in the possession of the service records of the 1st petitioner. As such, o.p.18291/99 5 they cannot with any amount of certainty dispute the contentions of the petitioners either way. However, as pointed out by the learned Standing Counsel for the Board, the 1st petitioner himself admits in the original petition that he availed of the leave from 14.8.1981 to 13.8.1986 in anticipation that the leave would be sanctioned. Although based on Ext.P7 Advocate's notice, the petitioners would contend that the 1st petitioner saw the service records, the petitioners have not been able to produce a copy of the order sanctioning leave. It is settled law that a person applying for leave without allowances can avail of the leave only after the leave is sanctioned. That being so, I am unable to countenance the contention of the petitioners that the leave applied for was sanctioned. Further, the petitioners' case is that the 1st petitioner came back in September, 1983 and reported for joining duty. If the 1st petitioner was in fact not allowed to join duty, it was difficult to believe that for 14 long years till his date of superannuation, he kept quiet although he claims to have filed representations, last of which produced before me is of 1987. As to what happened from 1983 to 1997 nothing is on record. The 1st petitioner himself admits that the 1st petitioner submitted leave application for the period from 14.8.1981 to 31.1.1997 o.p.18291/99 6 also. Whether it is unauthorized absence or leave without allowances, going by Appendix XIIA of the KSR, the fact is that both would not be counted for the purpose for retirement benefits. Therefore, essentially, there is no difference between treating the 1st petitioner's absence from 14.8.1981 to 31.1.1997 as unauthorised absence or leave without allowances. Therefore, I am of opinion that this original petition can be closed with a direction that the period of service of the 1st petitioner from 14.8.1981 to 31.1.1997 would be treated as not countable for the purpose of retirement benefits. Excluding that period, the 1st petitioner's service would be counted for the purpose of retirement benefits. All retirement benefits computed accordingly shall be disbursed to the legal heirs of the 1st petitioner as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.18291/99 7 S.SIRI JAGAN, J. ================ O.P.No.18291 of 1999-C ================ J U D G M E N T 17th November, 2008 o.p.18291/99 8