IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 WP(C).No. 19550 of 2004(B) --------------------------------------- PETITIONER: ------------------- P.U. PAILEE, AGED 50 YEARS, S/O. ULAHANNAN, OLITHADATHIL, KADUTHURUTHY, WORKING AS LDC, MANJUR PANCHAYATH. BY ADVS. MR.G.D.PANICKER, SMT.JEENA JOSEPH. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PANCHAYATH, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER MR. N.C. THANKACHAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.19550/2004-B: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. E6.89591/2001 DTD. 17/01/2002. EXT.P.2: COPY OF THE LETTER DTD. 31/01/2002 ISSUED BY THE R.1. EXT.P.3: COPY OF THE JUDGMENT DTD. 28/06/2002 IN O.P. 17543/2002. EXT.P.4: COPY OF THE REPRESENTATION DTD. 13/03/2002 SUBMITTED BY THE PETITIONER. EXT.P.5: COPY OF THE LETTER DTD. 02/06/03. RESPONDENTS' EXHIBIT: EXT.R2.A: ORDER DTD. 31/01/2002. //TRUE COPY// P.A. TO JUDGE. Prv. K. SURENDRA MOHAN, J. -------------------------------- WP(C) NO. 19550 OF 2004 ------------------------------------ DATED THIS THE 28TH DAY OF AUGUST 2009 JUDGMENT -------------- The Petitioner was a Lower Division Clerk. He has retired on 30-10-2008 during the pendency of this Writ Petition. He was working in the Panchayat department. He has filed this writ petition challenging Ext.P5 order of the 2nd respondent, Director of Panchayats ordering regularization of his period of absence from 30-1-2002 to 25-7-2002, treating the same as eligible leave. According to the Petitioner, he was prevented from joining duty and working by his superiors. 2. The Petitioner was transferred from Thalayolaparambu Grama Panchayat to Mulakulam Grama Panchayat as per order dated 1-12-2000. Thereafter, he was transferred from Mulakulam Grama Panchayat to Thalapulam Grama Panchayat in an existing vacancy in Public interest. Subsequently, on his request, the petitioner WP(C) NO. 19550 OF 2004 2 was transferred to Kaduthuruthy Grama Panchayat as per Ext.P1 order dated 17-1-2002. His transfer was on compassionate grounds. Pursuant to Ext.P1, the petitioner approached the Secretary of Kaduthuruthy Grama Panchayat on 30-1-2002 for joining duty. However, according to him he was not permitted to join duty but was asked to come on the next day. On the next day, 31-1-2002, the Secretary refused to permit the petitioner to join duty in Kaduthuruthy Grama Panchayat. He was told that the Deputy Director of Panchayats had informed him over telephone that he should not be allowed to join duty at Kaduthuruthy Grama Panchayat. On the insistance of the Petitioner, the Secretary, Kaduthuruthy Grama Panchayat issued Ext.P2 letter stating the above facts. 3. The Petitioner approached this Court by filing OP No.3761 of 2002 challenging the action of the Panchayat Secretary, Kaduthuruthy Grama Panchayat. On 11-2-2002, this Court directed the Petitioner to make a representation WP(C) NO. 19550 OF 2004 3 to the Director of Panchayats within one week and the Director was ordered to consider the representaiton and give a posting to the petitioner , as far as possible, in accordance with the preference of the petitioner. Accordingly, the petitioner submitted a representation dated 12-2-2002 to the 2nd respondent. However no action was taken on his representation. Therefore, the petitioner approached this court again by filing another writ petition viz. OP No. 17543 of 2002, which was disposed of by the judgment produced as Ext.P3 in the above writ petition. As per Ext.P3, this Court directed the 2nd respondent to pass appropriate orders regularizing the period that he was remaining out of service as stated above. 4. Subsequently the petitioner is alleged to have approached the Director of Panchayats,Thiruvananthapuram and obtained an order posting him in Koottickal Grama Panchayat on 25-7-2002. Thereafter he joined duty on 27-7-2002. In that process, during the period from WP(C) NO. 19550 OF 2004 4 30-1-2002 to 27-7-2002 he was kept out of service. The Director of Panchayats considered the question of regularization of the petitioner's period of absence and passed Ext.P5 proceedings directing that his leave of absence be treated as eligible leave. 5. The petitioner challenges Ext.P5 proceedings contending that he was kept out of service due to no fault on his part, but, only due to fault of the authorities. Pursuant to the order of transfer to Kaduthuruthy Grama Panchayat, though he had promptly reported for duty, he was not permitted to join duty by the Panchayat Secretary. Therefore, according to him there was no justification for putting the blame on his shoulders and treating the leave of absence as eligible leave. 6. The writ petition is resisted by the respondents. A counter affidavit has been filed by the 2nd respondent contending that though the petitioner had been transferred to Kaduthuruthy Grama Panchayat, the President of the said WP(C) NO. 19550 OF 2004 5 panchayat had lodged a complaint against the petitioner making serious allegations against him. According to the 2nd respondent, it was alleged that the petitioner had been suspended from service on an earlier occasion on charges of frequent quarrels with his fellow staff members, causing obstruction to the official work and for attending office after consumption of liquor. It is further alleged that disciplinary proceedings had been initiated against the petitioner for forging tax receipts while working in Kuruvilangad Grama Panchayat. Therefore, the President requested for cancellation of Ext.P1 order. It is further alleged that pursuant to the objections of the president of Kaduthuruthy grama panchayat the 2nd respondent transferred the petitioner to Koottickal grama panchayat. According to the 2nd respondent, the order was served on the petitioner on 1-2-2002. Therefore it is prayed that the writ petition may be dismissed. WP(C) NO. 19550 OF 2004 6 7. I have heard the counsel for the petitioner Shri. G.D Panicker, and the learned Government Pleader who appears for the respondents. I have considered the contentions of the parties. I have also gone through the records of the case. 8. Admittedly, the petitioner was transferred to Kaduthuruthy Grama Panchayat on 17-1-2002 as per Ext.P1 order of transfer. It is also not in dispute that he had reported to the Secretary, Kaduthuruthy Grama Panchayat on 30-1-2002 for joining duty there. However, he was not permitted to join duty by the Panchayat Secretary. On the insistance of the petitioner, the Panchayat Secretary has issued Ext.P2 proceedings. The reason stated in Ext.P2 is that he had been directed by the Deputy Director of Panchayats over telephone not to permit the petitioner to join duty. Ext.P2 does not state any reason for not permitting him to join duty. Therefore, Ext.P2 clearly shows that it was not due to any fault on the part of the petitioner WP(C) NO. 19550 OF 2004 7 that he did not join duty on 30-1-2002 at Kaduthuruthy Grama Panchayat, to which he had been transferred. 9. The petitioner immediately approached this court by filing OP 3761 of 2002 and this court directed him to submit a representation before the Director of Panchayats as per judgment dated 11-2-2002. However, no orders were passed on his representation. The Petitioner therefore had to approach the court by filing OP 17543 of 2002 which was disposed of by Ext.P3 judgment dated 28-6-2002. It was only thereafter on 25-7-2002 that the petitioner obtained a copy of the order transferring him to Koottickal Grama Panchayat. Accordingly he joined duty on 26-7-2002 itself. 10. It is clear from the sequence of events noted above that the petitioner cannot be found fault with for not having joined duty on 30-1-2002 pursuant to the order transferring him to Kaduthuruthy Grama Panchayat. Though the 2nd respondent has stated in his counter affidavit that Ext.R2(a) order was served on him on 1-2-2002, there is no WP(C) NO. 19550 OF 2004 8 evidence to prove any such service. It is pertinent to note that he had no case in any of the previous writ petitions that any such order had been served on the petitioner. Ext.P3 judgment also shows that the petitioner was remaining without a posting even on 28-6-2002, the date of the said judgment. Therefore, the case put forward in the counter affidavit cannot be accepted. 11. A further case has been put forward in the counter affidavit that allegations of misconduct were made against the Petitioner by the Panchayat President relating to the period that he had worked at Kaduthuruty Grama Panchayat on a previous occasion. However, any such allegation cannot be a ground for preventing the petitioner from joining duty at the station to which he had been transferred. Even if the president of the Panchayat was having objections to his posting at Kaduthuruthy, he could have been permitted to join duty and then transferred. Therefore the allegations of the President cannot be a justification for not permitting him WP(C) NO. 19550 OF 2004 9 to join duty at Kaduthuruty Grama Panchayat. Ext.P5 proceedings of the 2nd respondent has been passed on the assumption that it was not due to any act on the part of the department that he was prevented from joining duty at Kaduthuruthy Grama Panchayat. The said assumption is absolutely wrong and contrary to the facts admitted in this case. It is clear from Ext.P2 that he was not permitted to join duty only due to the action of the Secretary of Kaduthuruthy Grama Panchayat who was acting on the instructions of the 2nd respondent. Therefore, Ext.P5 is unsustainable. 12. In view of the above Ext.P5 is modified and the 2nd respondent is directed to regularize the service of petitioner treating the leave of absence from 30-1-2002 to 25-7-2002 as duty. Such orders regularizing the petitioner's service shall be issued as expeditiously as possible, at any rate within a period of 3 months from the date of receipt of copy of this judgment, which the petitioner is permitted to WP(C) NO. 19550 OF 2004 10 produce before the authorities. The petitioner shall be entitled to all service benefits including salary, consequent to such regularization. The Government is free to recover the loss so caused to the public exchequer, from the persons who were actually responsible for preventing the petitioner from joining duty. The Writ Petition is accordingly allowed with costs. K. SURENDRA MOHAN JUDGE PKK