IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 8TH MARCH 2011 / 17TH PHALGUNA 1932 WP(C).No. 27180 of 2010(V) ---------------------------------------- PETITIONER(S): ----------------------- K.J.ANTONY, S/O. MATHAI OUSEPH, AGED 54 YEARS, ASSISTANT STOREKEEPER GR.II, KSRTC, CHANGANASSERY AND RESIDING AT KALATHIL HOUSE, VEROOR P.O., VADAKKEKARA, I.K.NAGAR, CHANGANASSERY, KOTTAYAM. BY ADV. SRI.N.UNNIKRISHNAN RESPONDENT(S): -------------------------- 1. THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM-695 001, REP. BY ITS MANAGING DIRECTOR. 2. THE FINANCIAL ADVISOR & CHIEF ACCOUNTS OFFICER, K.S.R.T.C., TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM-695 001. 3. THE CHIEF PERSONAL MANAGER IN CHARGE OF EXECUTIVE DIRECTOR (ADMN.) K.S.R.T.C., TRANSPORT BHAVAN, FORT,THIRUVANANTHAPURAM-695 001. 4. THE DISTRICT TRANSPORT OFFICER, K.S.R.T.C., CHANGANASSERY. R1 TO R4 BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR,SC FOR KSRTC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.27180/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE MEMORANDUM NO.P2-846/97/KYLM DATED 21/4/1997. P2 COPY OF THE MEMO NO. P2.6501/2000/KYLM DATED 11/6/2001. P3 COPY OF THE MEMO. NO. E2-2853/02/CHRY DATED 10/1/2003. P4 COPY OF THE MEMORANDUM NO.E2/3049/09/CHRY DATED 17/12/2009. P5 COPY OF THE LEAVE APPLICATION DATED 22/3/2010. P6 COPY OF THE LETTER DATED 18/5/2010 SUBMITTED BY PETITIONER. P7 COPY OF THE LETTER DATED 15/6/2010 TO THE FIRST RESPONDENT. P8 COPY OF THE REPRESENTATION DATED 9/7/2010 SUBMITTEDBY TO 1ST RESPONDENT. P9 COPY OF THE MEMORANDUM NO.PL2/7127/10 DATED 17/8/2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts C.T.RAVIKUMAR, J. --------------------------------------- W.P(C)No.27180 of 2010 ---------------------------------------- Dated 8th March, 2011 JUDGMENT The petitioner commenced his career under the Kerala State Road Transport Corporation (for short `the Corporation') as Work Assistant on 31.10.1978. Thereafter, he was granted leave without allowances for various periods. After cancelling the unavailed portion of leave he rejoined duty on 8.6.2001. Again he availed leave without allowances with effect from 13.1.2003 and thereafter, rejoined duty on 17.12.2009 as is obvious from Ext.P4. Subsequently, he has submitted Ext.P5 application for voluntary retirement. In Ext.P5 application 22.6.2010 has been shown as the date intended for voluntary retirement. On 18.5.2010 the petitioner has again requested for permission to rejoin duty as per Ext.P6. However, no orders were passed thereon. Thereafter, as per Ext.P7, he again sought permission to retire voluntarily. As per Ext.P7, he requested the authorities to act on Ext.P5 and to permit him to retire voluntarily. For quite some time, no order was passed on Ext.P5. At the same time, no order refusing the request of the petitioner for voluntary retirement or permitting him to rejoin duty was passed. Admittedly, till date, no such order was passed. Later, the WP(C).No.27180/2010 2 petitioner was served with Ext.P9. In Ext.P9 it is stated that he has not completed the minimum qualifying service of 20 years and therefore, ineligible to retire voluntarily and therefore, his request for voluntary retirement could not be allowed. Ext.P9 is dated 17.8.2010. 2. The respondents have filed a counter affidavit. In the counter affidavit it is admitted that the petitioner had commenced his service under the Corporation on 31.10.1978. That apart, it is stated therein that he had availed leave without allowances for a total period of 11 years and 18 days. The learned counsel appearing for the petitioner submitted that the above facts specifically stated in the counter affidavit would undoubtedly reveal the hollowness in the contention of the respondent that the petitioner had not completed 20 years of service. Based on the same, it is contended that the reason assigned in Ext.P9 that he had not completed 20 years of service is wholly unsustainable. The learned counsel further submitted that the petitioner had not completed 20 years of service and thus ineligible to retire voluntarily, the respondents should have permitted the petitioner to rejoin duty. The petitioner is to attain the age of superannuation only on 31.3.2011. In short, according to the petitioner, either he should be permitted to retire voluntarily or should be permitted to rejoin duty and to retire on attainment of the age of superannuation. WP(C).No.27180/2010 3 The action on the part of the respondents in not allowing the petitioner to retire voluntarily and at the same time refusing permission to rejoin duty is nothing but arbitrary and illegal. 3. The learned standing counsel for the respondents submitted that the respondents have not accepted the request of the petitioner for voluntary retirement and it is also admitted that the petitioner was not permitted to rejoin duty. I am of the view that no employer can take such a stand. Admittedly, the respondents have received the application for voluntary retirement submitted in terms of the provisions under Rule 56 of Part III of the Kerala Service Rules. It is the bounden duty of the competent authority to ascertain whether the concerned person who applied for voluntary retirement had completed the required minimum service. It is only after ascertaining the said fact permission could be granted. Admittedly, the petitioner commenced his service on 31.10.1978 and he was on leave without allowances only for a period of 11 years and 18 days. If the respondents are still maintaining the stand that the petitioner had not completed 20 years of service and thereby he had not acquired the required minimum qualifying service for voluntary retirement that too, after admitting the aforesaid facts, they are bound to permit him to rejoin duty. No legally sustainable reason was assigned for refusing WP(C).No.27180/2010 4 such permission. In the said circumstances, this writ petition is disposed of with the following directions:- In the light of Ext.P9, the respondents shall permit the petitioner to rejoin duty within one week from today. It is made clear that this Court has not made any observation with respect to the merits of the other contentions raised in this writ petition and as such contentions available to both parties, on all other points are left open. C.T.RAVIKUMAR Judge TKS