IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 WP(C).No. 3969 of 2006(S) ------------------------------------- OA.NO.550/2004 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH. .................... PETITIONERS: --------------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF AGRICULTURE, DEPARTMENT OF ANIMAL HUSBANDRY AND DAIRYING, KRISHI BHAVAN, NEW DELHI. 2. THE DIRECTOR, INTEGRATED FISHERIES PROJECT, KOCHI-16. 3. THE ACCOUNTS OFFICER, O/O. THE DIRECTOR, INTEGRATED FISHERIES PROJECT, KOCHI-16. BY MR. P.PARAMESWARAN NAIR, ASST.S.G. RESPONDENT: ---------------------- K. KARUNAKARAN, S/O. LATE KRISHNAN, AGED 59, JUNIOR DECK HAND, INTEGRATED FISHERIES PROJECT, KOCHI-16,RESIDING AT 3/303,ILLIKKAL HOUSE, PRASANTH NAGAR ROAD,MARADU P.O.,ERNAKULAM DISTRICT. BY ADV. MR.P.A.KUMARAN, SMT.REKHA VASUDEVAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.3969/2006-S: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE O.A. NO. 550/2004 OF THE C.A.T. ERNAKULAM DT. 19/07/2004. EXT.P.2: COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS HEREIN IN O.A. NO.550/2004 DT. 04/09/2004. EXT.P.3: COPY OF THE REJOINDER FILED BY THE RESPONDENT HEREIN IN O.A. NO. 550/2004 DTD. 15/09/2004. EXT.P.4: COPY OF THE PETITION FILED BY THE PETITIONERS HEREIN IN O.A. NO. 550/2004 DT. 18/01/2005. EXT.P.5: COPY OF THE ORDER DT. 07/07/2005 IN I.A. NO. 550/2004 OF THE C.A.T. ERNAKULAM. EXT.P.6: COPY OF THE PETITION FILED BY THE RESPONDENT HEREIN IN O.A. NO. 550/2004 OF THE C.A.T. ERNAKULAM DTD. 28/11/2005. RESPONDENTS' EXHIBIT: EXT.R1.A: COPY OF THE M.A. NO. 295/2005 ALONG WITH THE ANNEXURES. //TRUE COPY// P.A. TO JUDGE. Prv. K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ========================================= W.P.(C).No.3969 of 2006 - S =============================== Dated this the 24th day of March, 2009. J U D G M E N T Balakrishnan Nair, J. Writ petitioners are the respondents in O.A.NO.550/2004. Applicant is the respondent herein. The brief facts of the case are the following. The respondent/applicant was a Junior Deck Hand working under the writ petitioners. He was granted 18 months study leave from 26.12.1994 to 24.6.1996 to undergo a special course of study, so that he can take the Mate (Fishing Vessel) Certificate Examination. He also executed a bond in form 7 as provided under Rule 53(4) of the CCS(Leave) Rules. He completed the course and took the examination. But he could clear only parts B and C and failed in Part A of the examination. In other words, he failed to clear the examination in full. In view of the said position, second petitioner took steps to recover the salary paid to him during the leave period. Challenging those proceedings O.A.550/2004 was filed. The Tribunal after hearing both sides took the view that going by the rules, there is no stipulation that the applicant should clear the examination. Completion of the course alone is sufficient as per rules. Based W.P.(C).No.3969 of 2006 - S 2 on that finding the proceedings initiated against the applicant to recover salary during the leave period were quashed. The respondents therein aggrieved by the said decision of the CAT, have filed the present writ petition. The petitioners mainly rely on Rule 63(1) and Rule 53(4) of the CCS (Leave) Rules in support of their contentions. Rule 63(1) reads as follows: “63. Resignation or retirement after study leave or non-completion of the course of study. (1) If a Government servant resigns or retires from service or otherwise quits service without returning to duty after a period of study leave or within a period of three years after such return to duty or fails to complete the course of study and is thus unable to furnish the certificates as required under sub-rule (5) of Rule 53 he shall be required to refund - (i) the actual amount of leave salary, Study Allowance, cost of fees, travelling and other expenses, if any, incurred by the Government of India; and ............... Provided that except in the case of employees who fail to complete the course of study nothing in this rule shall apply - (a) to a Government servant who, after return to duty from study leave, is permitted to retire from service on medical grounds; or .......................”. The above quoted Rule 63 provides that the incumbent should furnish the certificate as required under sub-rule 5 of Rule 53. Otherwise he will be required to refund leave salary. Sub-rule 5 W.P.(C).No.3969 of 2006 - S 3 of Rule 53 reads as follows: “53. Sanction of study leave. x x x x x x x x x x (5)(a) On completion of the course of study, the Government servant shall submit to the authority which granted him the study leave, the certificates of examinations passed or special courses of study undertaken, indicating the date of commencement and termination of the course with the remarks, if any, of the authority in charge of the course of study”. The said rule provides for producing the certificate of the examination passed or the course of study undertaken. The said rule does not say that he should clear the examination and present the certificate. He should submit whatever examination he was able to clear. But according to the petitioners, when these two rules are read together it is mandatory to complete the course, pass the examination and produce the certificates as proof thereof. The respondent on the other hand would submit that the Rules do not expressly state that the applicant should pass the examination after the completion of the course of study and otherwise he should repay the leave salary that was received by him. W.P.(C).No.3969 of 2006 - S 4 2. Going by the rules, two views are possible. A view in favour of the employee has been taken by the Tribunal. Both sides did not cite any precedent on this point. Normally, by interpreting a rule additional burden cannot be cast on an incumbent who is governed by the rule. If there is vagueness in the rule regarding any liability arising therefrom, normally, vagueness should go in favour of the person affected. Since the interpretation of the rule adopted by the Tribunal being a plausible view, we feel that it is not proper for us to interfere with the same under Article 226 of the Constitution of India. Accordingly, the writ petition fails and it is dismissed. K.BALAKRISHNAN NAIR, JUDGE. M.L.JOSEPH FRANCIS, JUDGE. bkn/-