Jayan P.K v. Kerala State Road Transport Corporation and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** ``` MONDAY, THE 27[TH] DAY OF JUNE 2022 / 6TH ASHADHA, 1944 ``` ## **`WP(C) NO. 37464 OF 2018`** ## **`PETITIONER:`** ``` JAYAN.P.K AGED 55 YEARS S/O UNNIPPARAVAN, PANNIKKOTTIL HOUSE, KARAD PARAMBA.P.O, (VIA) FEROKE COLLEGE, MALAPPURAM DISTRICT. ``` ``` BY ADVS. M.SASINDRAN SRI.V.VENUGOPAL ``` ## **`RESPONDENTS:`** - `1 THE KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN, THIRUVANANTHAPURAM-695 001, REPRESENTED BY ITS MANAGING DIRECTOR.` - `2 THE EXCUTIVE DIRECTOR (VIGILANCE) KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM-695 001` - `3 THE EXCUTIVE DIRECTOR (ADMINISTRATION) KERALA STATE ROAD TRANSPORT CORPORATION, CHIEF OFFICE, THIRUVANTHAPURAM-695 001` ``` 4THE ASSISTANT TRANSPORT OFFICER, KERALA STATE ROAD TRASNPORT CORPORATION, PERINTHALMANNA-679 322, MALAPPURAM DISTRICT BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR DEEPU THANKAN SRI.P.GOPINATH SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SMT.PARVATHY KOTTOL SMT.UMUL FIDHA ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`WP(C) NO. 37464 OF 2018 2`** ## **JUDGMENT** The petitioner joined the services of the Kerala State Road Transport Corporation (KSRTC) as a Driver on 19.07.2000 and says that he fell ill soon thereafter, thus constraining him to seek that he be given a lighter duty. 2. He says that his request to give him a lighter duty was acceded to by the Managing Director of the KSRTC, through Ext.P2 and that he was then asked to appear before the District Medical Board, which he did on 20.03.2003, leading to Ext.P3 Certificate being issued. He says that, thereafter, when his medical condition worsened, he preferred Ext.P5 letter on 05.12.2005, seeking change of category of post, but that in the meanwhile, he fell further ill on account of Lymphoma, thus being incapacitated from reporting back to duty. 3. The petitioner asserts that the afore facts were made aware to the KSRTC, but that they still issued Ext.P6 letter on 24.11.2016, asking him to rejoin duty on 01.12.2016 and that when he could not do so on account of the afore reasons, disciplinary action was initiated against him. He says that he, therefore, made a representation before the Minister for ## **`WP(C) NO. 37464 OF 2018 3`** Transport seeking relief, which was replied through Ext.P7, asking him to produce relevant documents and medical certificates, which he says he did, as is evident from Ext.P8 Certificate issued by the Superintendent of General Hospital, Manjeri, which records that he is suffering from “Non Hodgkins Lymphoma Stage III’. 4. The petitioner says that in spite of this, when the disciplinary action against him was continued, he again preferred Ext.P9 representation before the Minister for Transport, seeking that he be at least given an invalid pension, so as to enable him to continue his life, but that all this was disregarded by the KSRTC, finally culminating in Ext.P12 order terminating his services. He asserts that Ext.P12 and every other action that preceded it, are vitiated particularly because it did not even take into account Ext.P11 explanation given by him, in which he has narrated the extenuating medical condition, which incapacitates him even from doing routine work. 5. The petitioner thus prays that Ext.P12 be quashed, further adding that, in fact, even before it, Ext.P15 order of termination had been issued, which renders it indubitable that ## **`WP(C) NO. 37464 OF 2018 4`** the former has been done in a premeditated or mechanical manner. 6. I have heard Sri.M.Sasindran – learned counsel for the petitioner and Smt.Umul Fidha – learned counsel representing the learned Standing Counsel for the KSRTC. 7. Smt.Umul Fidha, began her submissions with a preliminary objection that this writ petition is not maintainable because there is an alternative, efficacious statutory remedy against Ext.P12 which the petitioner has not yet invoked. She then added that Ext.P12 cannot be found to be in error at all, nor can the petitioner assail it, because he had been on unauthorized absence from 29.03.2003 onwards. She submitted that, as is evident from Ext.P12, it was issued only on 12.03.2018, which is 15 years after the petitioner refused to report back for duty and hence that it cannot be called into question by him on hyper technical contentions. She added that Ext.P12 took into account every relevant aspect involved, including the explanation of the petitioner made in Ext.P11; and thus prayed that this writ petition be dismissed. 8. After saying as afore, Smt.Umul Fidha added that the ## **`WP(C) NO. 37464 OF 2018 5`** maximum that the KSRTC can perhaps consider is the grant of invalid pension to the petitioner, but that this will be of no avail to him either because he served only about two years or so before he began unauthorized absence from 29.03.2003. She thus argued that this would be of no real benefit to the petitioner. 9. I have evaluated the afore rival submissions very carefully, as also the documents on record. 10. Upfront, I must record that the facts as pleaded by the petitioner are hazy, to say the least. He admits that he joined duty only in the year 2000, but that he applied for shifting to a lighter duty on account of spondylosis and related issues about two years later. He concedes that he was so shifted to a lighter duty, but that he was unable to perform that either, forcing him to request category change of post, through Ext.P5, in the year 2005. He, however, concedes that he was unable to rejoin duty thereafter and explains this to be on account of his advanced Cancer and related problems. 11. However, there is nothing to show that he had made an application for medical leave or that he had followed it up in any ## **`WP(C) NO. 37464 OF 2018 6`** manner. It is only when Ext.P6 notice was issued to him by the KSRTC on 24.11.2016, did he spur into action and approach the Minister for Transport, which then led to Ext.P7 communication being issued to him to produce a Medical Certificate, which he did as is perspicuous from Ext.P8. However, neither the petitioner nor the records have been able to inform this Court whether these were ever made available to the KSRTC; and going by Ext.P11 explanation given by the petitioner, it is extremely doubtful. 12. Apart from detailing the various medical problems that he faced and the fact that he was under treatment in an Ayurvedic Centre, the petitioner does not even whisper that he had applied for leave or continued to be absent from duty with a valid authorization. Interestingly, he relies on the certificate of the Medical Board obtained in the year 2003, but without, in any manner, referring to the subsequent medical reports, which recorded that he is suffering from Cancer. 13. These aspects certainly go against the petitioner and therefore, I cannot find fault with Ext.P12, because when somebody keeps away from service for about 15 years, the ## **`WP(C) NO. 37464 OF 2018 7`** management can only do what they have done in this case. 14. That being said, this Court is certainly of the view that any eligible benefits that can be granted to the petitioner, should be considered, taking note of the rather difficult situation which he is presently put in. 15. I am, therefore, of the firm view that the Executive Director of the KSRTC, who is the Disciplinary Authority, must reconsider the punishment imposed on the petitioner, but without ordering his reinstatement; thus grant him any benefit that can be given, including invalid pension and such other, taking note of his service in the KSRTC prior to his unauthorized absence. I am certain that this the best that can be offered to the petitioner in the given circumstances. Resultantly, I order this writ petition to the limited extent of directing the 2[nd] respondent – Executive Director (Vigilance) to reconsider the petitioner’s case and decide whether any modification to Ext.P12 can be offered, so as to give him the afore limited relief. The said Authority will also advert to the declarations of law by the Hon’ble Supreme Court in _**Krushnakant B.Parmar v. Union of India & Another**_ ## **`WP(C) NO. 37464 OF 2018 8`** _**[(2012) 3 SCC 178]**_ and _**Chennai Metropolitan Water Supply and Sewerage Board and Others v. T.T.Murali Babu**_ _**[(2014) 4 SCC 108]**_ , if they are cited before him by the petitioner during the afore process. Further, the impact of Rule 42 of Part III of the Kerala Service Rules and that of the provisions of Section 20 of the Rights of Persons with Disabilities Act, 2016 will also be kept in mind by the said Authority. I make it clear that I am not quashing Ext.P12, but that liberty is being left to the 2[nd] respondent to modify it, if he so chooses for the said limited purposes. The afore exercise shall be completed by the 2[nd] respondent after affording an opportunity of being heard to the petitioner as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. ## **Sd** /- ## **`DEVAN RAMACHANDRAN JUDGE`** ## **`MC/29.6`** ## **`WP(C) NO. 37464 OF 2018 9`** ## **`APPENDIX OF WP(C) 37464/2018`** |`PETITIONER EXHIBITS`|| |---|---| |`EXHIBIT P1`|`A TRUE COPY OF THE MEMORANDUM ISSUED BY`| ||`THE SENIOR EXECUTIVE DIRECTOR DATED`| ||`12/07/2000.`| |`EXHIBIT P2`|`A TRUE COPY OF THE MEMORANDUM`| ||`NO.PLA.6/039084/02 TVM. DATED 07/10/2002`| ||`ISSUED BY THE MANAGING DIRECTOR.`| |`EXHIBIT P3`|`A TRUE COPY OF THE MEDICAL CERTIFICATE`| ||`ISSUED BY THE DISTRICT MEDICAL BOARD,`| ||`MALAPPURAM AS ON 20/03/2003.`| |`EXHIBIT P4`|`A TRUE COPY OF THE MEMORANDUM ISSUED TO`| ||`THE PETITIONER TO APPEAR BEFORE THE`| ||`MEDICAL BOARD.`| |`EXHIBIT P5`|`A TRUE COPY OF THE REQUEST MADE BY THE`| ||`PETITIONER BEFORE THE 1ST RESPONDENT DATED`| ||`05/12/2005.`| |`EXHIBIT P6`|`A TRUE COPY OF THE NOTICE ISSUED BY THE`| ||`4TH RESPONDENT DATED 24/11/2016.`| |`EXHIBIT P7`|`A TRUE COPY OF THE COMMUNICATION ISSUED BY`| ||`THE 4TH RESPONDENT DATED 26/11/2016.`| |`EXHIBIT P8`|`A TRUE COPY OF THE MEDICAL CERTIFICATE`| ||`ISSUED BY THE SUPERINTENDENT, GOVERNMENT`| ||`GENERAL HOSPITAL, MANJERI.`| |`EXHIBIT P9`|`A TRUE COPY OF THE REMINDER TO CONSIDER`| ||`THE APPLICATION FOR INVALID PENSION`| ||`SUBMITTED BY THE PETITIONER DATED`| ||`7/7/2017.`| |`EXHIBIT P10`|`A TRUE COPY OF THE SHOW CAUSE NOTICE DATED`| ||`1/02/2018.`| |`EXHIBIT P11`|`A TRUE COPY OF THE OBJECTION SUBMITTED BY`| ||`THE PETITIONER DATED 13/02/2018.`| |`EXHIBIT P12`|`A TRUE COPY OF THE ORDER DATED 12/03/2018.`| |`EXHIBIT P13`|`A TRUE COPY OF THE APPLICATION SUBMITTED`| ||`BY THE PETITIONER BEFORE THE DISTRICT`| ||`COLLECTOR.`| |`EXHIBIT P14`|`A TRUE COPY OF THE COMMUNICATION ISSUED TO`| ||`THE PETITIONER DATED 05/09/2018.`| |`EXHIBIT P15`|`A TRUE COPY OF THE ORDER DATED 30/12/2017`| ||`ISSUED BY THE 3RD RESPONDENT WHICH HAS`| ||`BEEN SENT TO THE PETITIONER ALONG WITH`| ||`EXT.P14 COMMUNICATION.`|