IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 WA.No. 2014 of 2008 ----------------------------- AGAINST THE JUDGEMENT IN O.P. NO.17465/2001 DATED 19/02/2008 .................... APPELLANT/ 1ST RESPONDENT IN O.P: --------------------------------------------------------- THE MANAGING DIRECTOR, KEALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. BY ADV. SHRI.JOHNSON P.JOHN, SC, KSRTC. RESPONDENT/ PETITIONER IN O.P: --------------------------------------------------- T.V.LEELA,SWEEPER CUM SCAVENGER, KERALA STATE ROAD TRANSPORT CORPORATION, PONNANI DEPOT,PONNANI. BY ADV. SRI. T. SETHU MADHAVAN. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------- W.A.No.2014 OF 2008 ------------------------------------- Dated 21st October, 2008 JUDGMENT Koshy,J . The writ petitioner was a Sweeper-cum-scavenger in the Kerala State Road Transport Corporation. She applied for maternity leave for the period from 30.4.1987 to 30.7.1987. The same was granted. Because of some complications, she applied for extension of leave from 31.7.1987 to 21.7.1988. That was also granted. She again applied for extension of leave on medical grounds for the period from 22.7.1988 to 17.1.1989, but, she did not produce the medical certificate along with the application. According to the petitioner, she was under treatment and the doctor who was treating her was not available at the time when the extension of leave was applied. She produced the medical certificate on 24.8.1988. Leave applied for was over on 17.1.1989. On 18.1.1989, after the expirty of the leave period, she reported for duty with a fitness certificate. However, she was not permitted to join duty and after five years, in 1994, a memo of charges was issued to the petitioner on the ground of unauthorised absence. The fourth respondent conducted an enquiry and found that delay in submission of medical certificate was not wilful and recommended a lenient view. By W.A.2014/2008 2 Ext.P1 order, petitioner's services were terminated as punishment. The petitioner filed an appeal before the Managing Director who reduced the punishment to one of barring of increment for a period of two years and the period of absence from 22.7.1988 to 17.12.1996 was directed to be treated as leave without allowances. The petitioner filed an appeal before the Appellate Tribunal and by Ext.P4 order, the Appellate Tribunal reduced the punishment to barring of increment for a period of one year. In other respects, no interference was made. The learned Judge found that the petitioner was only a Sweeper-cum-scavenger. She started maternity leave from 30.4.1987 and leave was granted till 21.7.1988. She filed an application for extension of leave till 17.1.1989. But, no medical certificate was produced along with the leave application for extension of leave. She produced the medical certificate before disciplinary action is taken and disciplinary action was taken in 1994, only after five years. She reported for duty on 18.1.1989. Since she produced the medical certificate and reported for duty with fitness certificate, according to the learned Judge, she ought to have been reinstated on 18.1.1989 as no disciplinary action was pending against her. The learned Judge also held as follows: “At the outset, I must hold that the action of the respondents was grossly unjust, inequitable and W.A.2014/2008 3 disproportionate. The petitioner was a woman of the lower strata of society working as a sweeper-cum- scavenger in the Corporation. All what she had done by way of misconduct is only that she failed to produce a medical certificate in time in support of her application for leave, which was, in fact, later on produced without much delay. These facts are not disputed. In fact, on going through the impugned orders, I find that the respondents were also of the opinion that the alleged misconduct was not very serious at all. The impugned orders themselves stand witness to that. In Ext.P2, it is stated thus: “But, I am inclined to take a lenient view in the matter of punishment in view of the specific set of circumstances that forced the appellant to avail leave without obtaining permission.” In Ext.P4, it is stated thus: “When fitness certificate was produced she ought to have been admitted for duty without prejudice to disciplinary proceedings. However, the Disciplinary Authority treated her absence as unauthorised and imposed a punishment of her removal from the service with effect from the alleged date of unauthorised absence. .................... The evidence does not show willful absence from duty, though the extension applied for was not then supported by medical certificate to convince the authority that extension of leave sought was on genuine grounds.” As observed by the Appellate Tribunal, the evidence does not show that there was wilful absence from duty though the extension applied was not supported by a medical certificate to convince the authority that extension of leave sought for was on genuine grounds.” W.A.2014/2008 4 The learned Judge also noticed that even enquiry officer has recommended to take a lenient view. Learned Judge found that the petitioner is entitled to wages after she was denied employment and held that the petitioner is eligible for the wages from 22.7.1988 to 17.12.1996. Petitioner applied for leave from 22.7.1988 up to 17.1.1989 and reported for duty only on 18.1.1989. Therefore, she is entitled to wages only from 18.1.1989 and from 22.7.1988 to 18.1.1989, the period of absence, will be treated as leave without allowance. She is entitled to wages from 18.1.1989 to 17.12.1996, the date of reinstatement. The impugned judgment is modified accordingly. It is submitted that the petitioner retired. The benefits should be granted within three months from the date of receipt of a copy of this judgment. The appeal is disposed of accordingly. J.B.KOSHY JUDGE K.P.BALACHANDRAN JUDGE tks