IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 WP(C).No. 37251 of 2008(I) -------------------------- PETITIONER(S): --------------- UMA.A.C, PALAKKUZHIYIL HOUSE, VETTIMALAKUNNU, CHANTHAKUNNU.P.O, NELAMBOOR VAZHI, MALAPPURAM DISTRICT. BY ADV. SRI.DILIP MOHAN RESPONDENT(S): --------------- 1. KERALA STATE FINANCIAL ENTERPRISES, REPRESENTED BY ITS MANAGING DIRECTOR, HEAD OFFICE, THRISSUR. 2. KERALA STATE FINANCIAL ENTERPRISES, REPRESENTED BY ITS BRANCH MANAGER, NILAMBUR BRANCH. ADV. SRI.E.K.NANDAKUMAR, STANDING COUNSEL, K.S.F.E SRI.A.K.JAYASANKAR NAMBIAR FOR R1 SRI.K.JOHN MATHAI FOR R1 SRI.P.BENNY THOMAS FOR R1 SRI.ANIL D. NAIR FOR R1 SRI.V.J.ANAND FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.37251/2008-I ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 11th day of February, 2009 J U D G M E N T The substantial relief sought for in the writ petition is for a direction to the respondents to release maternity leave benefits and salary to the petitioner during the sanctioned period of leave. Ext.P5 is the representation filed by the petitioner before the Administrative Officer, K.S.F.E Ltd., Head Office, Thrissur, claiming the said benefits. By Ext.P6, the same was refused. 2. The petitioner joined service as Peon in the office of the second respondent pursuant to Ext.P2 order dated 31/10/2006. She had availed of maternity leave from 09/10/2007, which was sanctioned duly by the competent authority. The same is evidenced by Ext.P3 certificate. 3. She was an applicant to the post of Upper Primary School Teacher in a selection conducted by the P.S.C. On getting the appointment order, she submitted her resignation letter before the second respondent which was accepted. Ext.P4 evidences the said fact. 4. The petitioner's maternity leave benefits and salary were deposited in a Sugama A/c. bearing No. 1182 of the petitioner maintained by the respondents. When she approached the respondents for withdrawing W.P.(C) No.37251/2008 -:2:- the said amount, it was informed that the amount has been withdrawn already by the respondents. She was informed that, as she did not join duty after leave, and has chosen to resign from service, she is not entitled to draw the amount. Thereafter she filed Ext.P5 representation which resulted in Ext.P6 communication. 5. As directed by this Court, the respondents have filed a statement. The stand taken therein is two fold. Firstly, it is contended that going by Rule 69 of Part I KSR previous sanction was not obtained for taking up a fresh employment. Secondly, it is pointed out that for availing such benefit she should have joined back in the service going by Rule 66 of Part I KSR. It is pointed out that in view of the above circumstances, she cannot claim the benefit allowable on the maternity leave sanctioned. 6. Rules 66 and 69 of Part I KSR are extracted below:- “66. Leave ordinarily begins on the day on which transfer of charge is effected and ends on the day preceding that on which charge is resumed. When the day immediately preceding the day on which an officer's leave begins or immediately following the day on which his leave expires is a holiday or one of a series of holidays, the officer may leave his station at the close of W.P.(C) No.37251/2008 -:3:- the day before, or return to it on the day following such holiday or series of holidays; provided that- (a) his transfer or assumption of charge does not involve the handing or taking over of securities or of moneys other than a permanent advance; (b) his early departure does not entail a correspondingly early transfer from another station of an officer to perform his duties; and (c) the delay in his return does not involve a corresponding delay in the transfer to another station of the officer who was performing his duties during his absence or in the discharge from Government service of a person temporarily appointed to it. 69. An officer on leave may not take any service or accept any employment without obtaining the previous sanction of the authority empowered to fill up the post held by him. Note:- This rule does not apply to casual literary work, or to service as an examiner or similar employment; nor does it apply to acceptance of foreign service, which is governed by the rules under Chapter XI.” 7. The learned counsel for the respondents submitted that going by Rule 66 of Part I KSR leave ordinarily begins on the day on which W.P.(C) No.37251/2008 -:4:- transfer of charge is effected and ends on the day preceding that on which charge is resumed and unless the person join duty, the benefits of leave cannot be claimed. In this case, it is clear from the facts stated above that the maternity leave was sanctioned already. She submitted the resignation letter which was accepted as per Annexure-A by the head office. It was never insisted before its acceptance that she should join back as a condition for acceptance of the resignation or for granting other benefits. As per Rule 66 of Part I KSR leave ordinarily begins on the day on which transfer of charge is effected and ends on the day preceding that on which charge is resumed. The object is clear. It is only for counting the period of leave. In a case where the employer has chosen to accept the resignation without even insisting for rejoining duty, it cannot be said that merely because there is a failure to join duty other benefits will be forfeited. As far as Rule 69 of Part I KSR is concerned, it only indicates that during the period of leave, the person concerned should not avail another employment. Here, only after submitting the resignation she joined the new job. Therefore, even going by the plain terms of Rule 69 of Part I K.S.R, the said Rule will not have any application here. The purpose of the Rule is only that without getting previous sanction of the authority (employer), an officer on leave may not W.P.(C) No.37251/2008 -:5:- join another service. That means, a person after availing leave, shall not accept a job during the leave period. The respondents' contention appears to be that for getting the employment as the Upper Primary School Teacher, prior permission ought to have been obtained. There was no bar for applying for a job and after getting the order of appointment as U.P.School Teacher, she sought permission to resign from service and, therefore, it is not a case where she joined in the new employment during the leave period. There is no case for the respondents that during the period of leave she had been working as U.P.School Teacher. Therefore, the said contention also cannot be accepted. 8. The contention therefore, that since the petitioner has not rejoined back, she cannot claim any benefit of the service rendered by her under the second respondent cannot be accepted. The learned counsel for the petitioner invited my attention to Rule 63 of Part I K.S.R., and specifically to Note 2 of the said Rule which provides that “resignation of public service even though it is followed immediately by re-employment entails forfeiture of past service and constitutes an interruption of duty. But resignation to take up another appointment does not constitute an interruption.” In the light of the facts discussed above, there is no need to W.P.(C) No.37251/2008 -:6:- go into the interpretation of the said Note since I am of the view that once resignation is accepted without any precondition for the petitioner to join duty, the respondents cannot turn round and say that as she has failed to join duty prior to the relief from the service and, she is not entitled for the benefits of maternity leave and salary. 9. Therefore, Ext.P6 is quashed. The respondents are directed to release the maternity leave benefits and salary while she was on the said leave within a period of three weeks from the date of receipt of the copy of this judgment. 10. Since the resignation of the petitioner was accepted with effect from 17/01/2008, the petitioner will be entitled to be paid salary only upto 16/01/2008. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) ms