IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 WP(C).No. 6333 of 2009(J) ------------------------- PETITIONER(S): --------------- T.V.JACOB, S/O.VARKEY, ELECTRICIAN GRADE III, GENERATION DIVISION, KSEB, EDAMALAYAR, ERNAKULAM. BY ADV. SRI.ELDHOSE ELIAS SRI.SANU.S.PANICKER RESPONDENT(S): --------------- 1. THE SECRETARY, KERALA STATE ELECTRICITY BOARD, PATTOM, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, PATTOM, THIRUVANANTHAPURAM. 3. THE DEPUTY CHIEF ENGINEER, GENERATION CIRCLE, KSEB, KOTHAMANGALAM. 4. THE EXECUTIVE ENGINEER, GENERATION DIVISION, KSEB, IDAMALAYAR. ADV. SRI.K.S.ANIL, SC, KSEB FOR R1-4 SRI. ASOK M.CHERIYAN, SC, KSEB FOR R1TO4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.6333/2009 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF JUDGMENT IN WP(C) NO.30652/2004 DATED 11/03/2005. P2 : COPY OF INTERIM ORDER IN WA NO.1159/2005 DATED 07/06/2005. P3 : COPY OF JUDGMENT IN WA NO.1159/2005 DATED 28/06/2007. P4 : COPY OF MEMO REINSTATING the PETITIONER INTO SERVICE DATED 17/06/2005. P5 : COPY OF MEMORANDUM OF CONTEMPT CASE © 1158/2007. P6 : COPY OF LETTER NO.EBEW/CC/1158/07/2007 DATED 22/09/2007 ISSUED BY CHIEF ENGINEER TO DEPUTY CHIEF ENGINEER. P7 : COPY OF ORDER NO.EBI/WPC NO.30652/06-07 DATED 25/9/07. P8 : COPY OF ORDER NO.EBZ/INCREMENTS/07-08 PASSED BY THE DEPUTY CHIEF ENGINEER DATED 25/09/07. P9 : COPY OF JUDGMENT IN COC NO.1158/2007 DATED 25/9/07. P10 : COPY OF LETTER SENT BY ADV.ASHOK M.CHERIAN TO THE COUNSEL FOR the PETITIONER DATED 6/11/07. P11 : COPY OF LETTER TO THE BOARD SECRETARY BY THE STANDING COUNSEL DATED 6/11/07. P12 : COPY OF NOTICE DATED 06/11/2007. P13 : COPY OF NOTICE DATED 27/11/07. P14 : COPY OF REPLY DATED 19/11/07. P15 : COPY OF REPLY DATED 01/12/07. P16 : COPY OF NOTICE ISSUED BY DEPUTY CHIEF ENGINEER DATED 03/10/07. P17 : COPY OF ORDER DATED 23/6/08 PASSED BY THE CHIEF ENGINEER (HRM) //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.6333 of 2009 --------------------------------- Dated, this the 22nd day of October, 2009 J U D G M E N T The petitioner was working as an Electricity Worker in the KSEB. He was superannuated at the age of 55 and that was challenged before this Court in WP(C) No.30652/2004. That writ petition was disposed of by Ext.P1 judgment dated 11/03/2005 directing his reinstatement in service, and the respondents were directed to permit him to continue in service till he attained the age of 60. It was also made clear that for the period he was kept out of service, he will be eligible for monetary benefits. 2. It is stated that in pursuance to Ext.P1 judgment, he was reinstated in service on 17/06/2005. However, a Writ Appeal was filed by the Board, and in Ext.P2 interim order passed in the Writ Appeal, this Court clarified that he need be paid salary for the service rendered after attaining the age of 55 years till he attains the age of 60 years, only if Ext.P1 judgment is upheld. Finally, by Ext.P3, the Writ Appeal was also dismissed. WP(C) No.6333/2009 -2- 3. Complaining that the benefits due under Ext.P1 judgment were not released, the petitioner filed Contempt of Court Case No.1158/2007, that was disposed of by Ext.P9 judgment dated 25/09/2007 recording the submission of the respondent Board that Ext.P1 judgment has been complied with. However, subsequently, they passed Ext.P17 order dated 23/06/2008 holding that salary for the period from 27/06/2005 to 08/07/2007 was not paid to the petitioner for the reason that he was absent from duty for the said period. It is also stated that the above period of his absence was regularized as non duty without forfeiture of past service and without monetary benefits. It was thereupon that this writ petition is filed praying to set aside Ext.P17 order and to direct the respondents to disburse salary in the light of Ext.P9 judgment. 4. The learned counsel for the petitioner submits that during the period from 27/06/2005 to 08/07/2007 the petitioner had worked, and therefore, the statement in Ext.P17 order that he was absent during the aforesaid period is incorrect. The learned counsel for the petitioner refers to Ext.P8 order dated 25/09/2007, by which the petitioner was granted increment for the periods from 2005-06 to 2006-07. The learned counsel also invited my attention WP(C) No.6333/2009 -3- to Ext.P12, by which the petitioner was called upon to submit his leave applications for the days mentioned therein, in response to which the petitioner submitted Exts.P14 & P15. The sum and substance contention is that he was not absent as stated in Ext.P17 order. 5. A counter affidavit has been filed by the respondent Board. According to them, the petitioner was readmitted to duty following Ext.P1 judgment, on 17/06/2005. It is stated that from 27/06/2005 to 08/07/2007, he remained absent continuously, and according to them, the petitioner resumed duty only with effect from 09/07/2007, i.e. after the Writ Appeal filed by the Board was dismissed by Ext.P3 judgment rendered by the Division Bench of this Court. It is stated that salary and other allowances for the period from 09/07/2007 has been disbursed to the petitioner, and he was not paid salary for the period of his absence. 6. There is no reply affidavit filed by the petitioner. From the nature of the dispute raised, what arises for consideration is whether the petitioner is eligible to be paid salary for the period from 27/06/2005 to 08/07/2007, when according to the petitioner he has discharged duties, while according to the Board, he was WP(C) No.6333/2009 -4- absent. The petitioner attempts to substantiate his case referring to Exts.P8, P14 & P15. He also says that having made the submission before this Court when the Contempt of Court Case came up for orders that the judgment has been complied with by releasing monetary benefits, it is not open to the respondents to take this stand at this distance of time. 7. A reading of Ext.P12, a letter dated 06/11/2007 issued by the Deputy Chief Engineer, shows that during the period from 27/06/2005 to 08/07/2007 he was absent from duty, and that leave applications did not cover the periods mentioned. In the said communication, it is suggested that the petitioner was absent on days other than the days mentioned in Ext.P12. Going by the pleadings of the petitioner, he discharged duties during the aforesaid period, and the learned counsel submits that if the Attendance Register is verified, the fact that the petitioner has discharged duties during the aforesaid period will be disclosed. 8. Apart from the documents referred to above, both sides have not produced any document, which would have enabled this Court to conclusively decide on this factual controversy. In these circumstances, I feel that on the materials available, it may not be WP(C) No.6333/2009 -5- possible for this Court to arrive at a safe conclusion on the factual issue whether the petitioner attended duty during the period, when he was allegedly absent. In my view, verification of the Attendance Register for the period in question should enable the respondents to reach a conclusion in the matter. Therefore, I direct the 4th respondent to verify the attendance of the petitioner with reference to the Attendance Register during the period from 27/06/2005 to 08/07/2007, and ascertain whether the petitioner has actually discharged duties, and if so for how many days. It is directed that if on such examination, the petitioner is found to have discharged duties during the aforesaid period, in view of the directions in Ext.P1 judgment, monetary benefits admissible under the Rules shall be released to him. It is directed that the whole exercise shall be completed as expeditiously as possible, at any rate, within two months of production of a copy of this judgment. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg