IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 WA.No. 858 of 2010() -------------------- AGAINST THE JUDGEMENT IN WPC.3124/2004 Dated 21/12/2009 .................... APPELLANT(S): RESPONDENTS: ---------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHUDHI BHAVANAM, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD, VYDHUDHI BHAVAN, THIRUVANANTHAPURAM. 3. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, K.S.E.BOARD, ATTINGAL. 4. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, K.S.E.BOARD, ATTINGAL. BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB RESPONDENT(S): ---------------------- C.SUNDARESWARAN NAIR, LINE MAN GRADE II (RETIRED) ELECTRICAL MAJOR SECTION, ATTINGAL, MURUKKARAVILA VEEDU, KOTTIYODU, ATTINGAL, THIRUVANANTHAPURAM. BY ADV. SRI.K.A.ABRAHAM FOR RESPONDENT THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27/7/2010, THE COURT ON 13/08/2010 DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. ------------------------------- W.A.No.858 of 2010 ------------------------------- Dated this the 13th day of August, 2010 J U D G M E N T Ravindran,J. The appellants are the respondents in W.P.(C) No.3124 of 2004. The sole respondent is the petitioner herein. The brief facts of the case are as follows:- 2. The respondent is a former employee of the Kerala State Electricity Board, hereinafter referred to as the KSEB for short. He retired from service on 31.5.2003 on attaining the age of superannuation, while he was working as Overseer (Electrical). While the respondent was working as Line Helper, he applied for and was granted leave without allowances for a period of 3 years from 25.3.1974 to take up employment abroad. The said period of leave expired on 24.3.1977. He had applied for extention of leave without allowances for a further period of 7 years from 25.3.1977 to 24.3.1984. The respondent W.A.No.858 of 2010 2 thereafter reported for rejoining duty, but he was not permitted to rejoin duty. He thereupon filed O.P.No.9915 of 1991 in this Court. When the said writ petition came up for hearing, the learned standing counsel appearing for the KSEB submitted that the KSEB will permit the respondent to join duty without prejudice to the right of the KSEB to proceed against him for unauthorised absence. This Court disposed of W.P.(C) No.9915 of 1991 recording the said undertaking and thereupon, the respondent was reinstated in service as Lineman Grade II with effect from 18.11.1991. He was thereafter promoted as Lineman Grade-I with effect from 1.4.1982. Meanwhile, disciplinary action was initiated against him for unauthorised absence and it culminated in Ext.P6 order dated 26.5.1999, whereby the punishment of withholding of increment for one year without cumulative effect was imposed on him. The respondent was thereafter promoted as Overseer (Electrical) by Ext.P7 order dated 11.2.1997. Later, by Ext.P8 order dated 10.1.2001, the KSEB ordered that the period from 25.3.1977 to W.A.No.858 of 2010 3 17.11.1991 during which the respondent was absent from service will be treated as leave without allowances and will not count for any purpose including pension. The respondent thereafter retired from service on 31.5.2003. The instant writ petition was thereupon filed challenging Ext.P8 order and seeking a direction to the respondents to reckon the period mentioned in Ext.P8 as qualifying service for the computation of pension and other benefits. 3. The appellants resisted the writ petition contending that the respondent was unauthorisedly absent during the period from 25.3.1977 to 18.11.1991; that the punishment of withholding of one increment without cumulative effect was imposed on him and that the period of absence was treated as leave without allowances not counting for any purpose including pension. By the judgment under appeal, the learned single Judge held relying on Ext.P3 letter sent by the Chief Engineer to the Secretary of the KSEB that the respondent has been seeking readmission to duty since 1984, that there was no W.A.No.858 of 2010 4 bar in readmitting him for duty pending regularisation of the period of unauthorised absence, and therefore, the respondent cannot be visited with the consequences of the failure of the appellants to permit him to rejoin duty from 25.3.1984 onwards. In that view of the matter, the learned single Judge held that the period from 25.3.1984 to 17.11.1991 shall be reckoned for the grant of service benefits. 4. When the writ appeal came up for hearing on 14.7.2010, the learned standing counsel appearing for the KSEB submitted, on instructions, that the appellants are agreeable to have the period from 1.1.1986 to 17.11.1991 reckoned as service qualifying for grant of pensionary benefits. It was submitted that the available records would show that the respondent had reported for joining duty only on 1.1.1986 and not on 25.3.1984, as claimed by him. In the light of the said submission, the learned counsel appearing for the respondent was requested to get instructions as to whether the respondent is willing to accept the offer made by the appellants. When the W.A.No.858 of 2010 5 writ appeal came up for further hearing on 27.7.2010, the learned counsel appearing for the respondent submitted that the offer made by the learned counsel for the appellants that instead of the period from 25.3.1984 to 17.11.1991, the period from 1.1.1986 to 17.11.1991 alone will be computed for grant of pensionary benefits and that the said period need be reckoned only for the said purpose, is acceptable to the respondent. 5. We have considered the submissions made at the Bar by the learned counsel on either side. We have also gone through the pleadings and the materials on record. The fat that the respondent was punished for unauthorised absence is evident from Ext.P6 order dated 26.5.1999. The fact that the respondent was unauthorisedly absent is also evident from the findings and observations in Ext.P6. The respondent has not produced any order sanctioning him leave without allowances after 24.3.1977. Though Ext.P3 letter sent by the Chief Engineer would disclose that the respondent has been seeking readmission to duty since 1984, the said letter which bears the W.A.No.858 of 2010 6 date 2.5.1991 does not give the exact date on which the respondent reported for rejoining duty. Pursuant to the undertaking given to this Court which was recorded in Ext.P4 judgment, the respondent was readmitted to duty with effect from 18.11.1991. Long thereafter, the period of unauthorised absence was treated as leave without allowances with the observation that the said period will not count for any purpose including grant of pension. The learned single Judge interfered with the said decision and held that atleast in respect of the period from 25.3.1984 onwards, the respondent is entitled for terminal benefits. In our opinion, the reliance placed by the learned single Judge on Ext.P3 to hold that atleast from 25.3.1984, the respondent cannot be visited with the consequences of the appellants' act in keeping him out of service, cannot be sustained. Ext.P3 does not refer to any particular date on which the respondent had reported for duty. As a matter of fact, it is evident from Ext.P6 that he was found guilty of unauthorised absence from 25.3.1977. In such W.A.No.858 of 2010 7 circumstances, we are of the opinion that in the absence of any other cogent material, the offer made by the appellants to treat the period from 1.1.1986 to 17.11.1991 also as service qualifying for the grant of pensionary benefits requires to be accepted. We accordingly modify the judgment of the learned single Judge and dispose of the writ petition with the direction that the period from 1.1.1986 to 17.11.1991 will also be reckoned for the grant of pensionary benefits to the respondent. J.CHELAMESWAR, Chief Justice P.N.RAVINDRAN, Judge. nj.