IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 WA.No. 253 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN OP.21762/1998 Dated 22/10/2008 .................... APPELLANT/ PETITIONER ------------------------ T.V.ABDUL KHADER, AGED 56 YEARS, S/O.VEERAN T.M. ENGINEER PRODUCTION (FORMERLY SENIOR TECHNICIAN)BADGE NO.7308 FACT, COCHIN DIVISION, AMBALAMEDU. BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.JAGAN GEORGE SRI.K.A.NOUSHAD SRI.P.G.PRAMOD RESPONDENTS/ RESPONDENTS -------------------------- 1. THE FERTILISERS AND CHEMICALS TRAVANCORE LTD.,REP.BY ITS GENERAL MANAGER (COCHIN DIVISION) AMBALAMEDU. 2. THE DY.CHIEF MANAGER (ESTATE), FACT, COCHIN DIVISION, AMBALAMEDU. 3. M.V.RAMAKRISHNA KAMATH, SR.TECHNICIAN, BADGE NO.7691,FACT LTD.,(CD) AMBALAMEDU. ADV. SRI.E.K.NANDAKUMAR FOR R1-3 SRI.A.K.JAYASANKAR NAMBIAR, SC, FOR R1-3 SRI.K.JOHN MATHAI FOR R1-3 SRI.P.BENNY THOMAS FOR R1-3 SRI.ANIL D. NAIR FOR R1-3 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A.No.253 OF 2009 ------------------------------- Dated this the 12th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant is the writ petitioner. He is a senior Technician working under the 1st respondent FACT. He availed Special Leave for seeking employment abroad from 16.9.1992 for a period of one year, from 15.9.1993 for six months and from 4.4.1994 for another spell of one year. Exts.R1(b), R1(c) and R1(d) are the orders sanctioning leave for the above three spells, respectively. Since the respondents took the stand that he will lose seniority for the above said three spells, he filed Ext.P4 representation and thereafter, filed this writ petition seeking appropriate reliefs. The learned Single Judge, relying on the conditions contained in Exts.R1(c) and R1(d) to the effect that the appellant will lose seniority during the leave period, dismissed the writ petition. Feeling aggrieved by the said decision of the learned Single Judge, this Writ Appeal is filed. W.A.No.253/2009 2 2. The learned counsel for the appellant pointed out that though there are specific clauses in Exts.R1(c) and R1(d) that he will lose seniority during the leave period, there is no such clause in Ext.R1(b). Relevant clause is Clause 10 in Exts.R1(c) and R1(d). The said clause reads as follows: “R1(c) 10. You will not be considered for promotion to a higher post in FACT for a period of six months from 15.9.1993 on account of the special leave sanctioned to you. You will lose your seniority by the period you are in special leave. R1(d) 10: You will not be considered for promotion to a higher post in FACT for a period of one year from 4.4.1994 on account of the special leave sanctioned to you. You will lose your seniority by the period you are in special leave.” The clauses which are pressed into service against the appellant is Ext.R1(b) are the following: R1(b) 2: You will not be eligible for any salary or other benefits from FACT during the period of the lien and the period will be treated as leave without pay. 6. The period of foreign service of one year will not be counted for the purpose of gratuity W.A.No.253/2009 3 entitlement, contribution to PF, Contributory Health Scheme, quarters, uniforms, free schooling etc. 7. The period of service with the foreign employer shall not be counted for the purpose of your earning increment in FACT.” 3. The learned counsel for the appellant submits that the adverse effect on the service conditions of the appellant as a result of granting leave are specifically mentioned in Ext.R1(b) They do not include lose of seniority also. But, in the case of R1(c) and R1(d), there is express provision that the incumbent will lose seniority. Therefore, the learned Single Judge erred in relying on the conditions in Exts.R1(c) and R1(d) for dismissing the writ petition, it is submitted. 4. We heard the learned counsel for the FACT also. The 1st respondent, FACT, has filed a counter affidavit in this appeal as directed by us and the petitioner has filed a reply affidavit also. The counter affidavit dealt with the case of the appellant that in the case of certain others, leave period was reckoned for the purpose of seniority and he is alone subjected to discrimination. The respondents vehemently denied that W.A.No.253/2009 4 allegation. This being within the realm of disputed question of fact, we do not propose to render any final decision in the said controversy. But, going by Exts.R1(b), R1(c) and R1(d), we feel that the contentions of the appellant that he will not lose seniority during the one year leave period from 16.9.1992, but, may only lose the promotion chances that have arisen during that period has to be accepted. We also agree with the learned counsel for the appellant that, all adverse effects on his service conditions arising from the leave have been specifically enumerated in R1(b) and therefore, it is not just or proper to add one more to the disabilities suffered him. 5. In the result, it is ordered that the appellant will not lose seniority during the spell of leave starting from 16.9.1992 granted as per Ext.R1(b). But, if his juniors are promoted during that spell superseding him, the same need not be reviewed. The Writ Appeal is disposed of as above. W.A.No.253/2009 5 If the petitioner is eligible for any consequential benefits, as a result of this judgment, he may move the 1st respondent by filing a representation. In that event, the 1st respondent shall pass orders on it, within one month from the date of receipt of the representation. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps