Jenson K.X S/o Late Xavier v. Kerala State Road Transport Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 25TH DAY OF MAY 2020 / 4TH JYAISHTA, 1942** ## **WP(C).No.33497 OF 2019(J)** ## **PETITIONER:** **JENSON K.X S/O.LATE XAVIER, AGED 57 YEARS,** **RETD.VEHICLE SUPERVISOR, KSRTC, CHERTHALA DEPOT, RESIDING AT KINKARANTHARA, AROOR.P.O., ALAPPUZHA-688534** **BY ADV. SRI.NIRMAL V NAIR** ## **RESPONDENTS:** - **1 KERALA STATE ROAD TRNASPORT CORPORATION, TRANSPORT BHAVAN, FORT .P.O., THIRUVANANTHAPURAM-695023, REPRESENTED BY ITS MANAGING DIRECTOR** - **2 FINANCIAL ADVISOR AND CHIER ACCOUNTS OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT.P.O., THIRUVANANTHAPURAM-695023.** - **3 ASSISTNAT TRANSPORT OFFICER, K.S.R.T.C. CHERTHALA DEPOT, CHERTHALA, ALAPPUZHA DISTRICT, PIN-688524.** **R1-3 BY ADV. SRI.DEEPU THANKAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = W.P.(C) No.33497 of 2019** **= = = = = = = = = = = = = = = = = = Dated this the 25[th] day of May, 2020** ## **JUDGMENT** The petitioner retired from the services of the first respondent as a Vehicle Supervisor on, 28.02.2018. This writ petition is filed by him aggrieved by the delay in disbursing the pensionary benefits, and the proposal of the first respondent(KSRTC) to refix the date of absorption of the petitioner into service to a latter date, sought to be done after 18 years of absorption in service. 2. The respondents have filed a counter affidavit. 3. Heard learned counsel Sri.Nirmal V. Nair on behalf of the petitioner and Sri.Deepu Thankan, the learned Standing Counsel for the respondents. 4. The basic facts are not in dispute. On 22.07.2000 the petitioner joined the services of the first respondent as a Reserve Driver. A Reserve Driver is eligible to be absorbed in the permanent W.P.(C) No.33497 of 2019 :- 2 :- service of the first respondent on completion of 240 days of service. On 17.12.2000, while on duty, he met with an accident resulting in injuries. The factum of accident, injury and treatment are not in dispute and are evidenced by Exts.P4 to P7. On 16.04.2001, he reported for duty. He was sanctioned leave without allowance for the said period. Calculating the period of 240 days, after excluding the period he was on leave, he was absorbed in regular service with effect from 02.10.2001. On 12.10.2003 his probation was declared as Driver GrII and his services were confirmed. On 22.07.2009, he was promoted as Driver Gr-I and on 04.03.2016 as Vehicle Supervisor. He retired on 28.02.2018. Copy of the service book of the petitioner is produced as Ext.P15 in the writ petition. His Pensionary Benefits are not paid. 5. An audit objection has been raised on 29.11.2018 which reads thus, _“as per the standing orders, employees those who have absenting from duty more than 90 days during the reserve period should be considered as new entrant. In this case, he has_ W.P.(C) No.33497 of 2019 :- 3 :- _not been considered as new entrant so far.”_ Based on the same, the first respondent proposes to revise the date of absorption, reckoning the date of joining of service as Reserve Driver on 16.04.2001 that is, the date on which he was back on duty after the accident and from which date alone the 240 days will be counted for absorption in service. In other words, as per the proposal now made, the services of the petitioner from 22.07.2000 ie. when he joined as a Reserve Driver, till the accident occurred on 17.12.2000, is sought to be eschewed. 6. Rule 26(a) of Part III KSR as it stood at the relevant time read thus:- _“26. Time passed on leave of all kinds with or_ _without allowances will count as qualifying_ _service unless otherwise specified.”_ 7. Therefore, at the relevant time, going by the Rule as it stood, all kinds of leave, whether it be with or without allowances was to be counted as qualifying service. As noticed supra, the petitioner was sanctioned leave without allowance. W.P.(C) No.33497 of 2019 :- 4 :- The petitioner was entitled to have the period of leave counted as qualifying service and it was so done by the employer. 8. Though the learned Standing Counsel for the first respondent referred to the standing orders which provides, “break exceeding three months (90 days) will entail forfeiture of past service”, and contended that the break in service of the petitioner for more that 90 days results in forfeiture of his earlier service, I am unable to accept the said contention. 9. Admittedly the petitioner was granted leave for the period he could not join duty. As per Rule 26 of Part III KSR as it then stood(noticed supra), the said period is liable to be reckoned as qualifying service. The accident, which necessitated him to avail the leave, admittedly occurred during the course of employment. Under such circumstances, I am unable to accept the contention that there has been a “break in service”, as contended by the learned Standing W.P.(C) No.33497 of 2019 :- 5 :- Counsel. 10. Doctrine of 'sit back', is well accepted in service and administrative jurisprudence. The gist of the theory is that, disputes regarding appointments, seniority, promotion etc. shall not be permitted to be raked up after long years of slumber. Of course, the principle has been mostly applied in cases of challenge by a rival claimant with regard to seniority. Laches and delay is held to disable the right to challenge. [See Malcom Lawrence Cecil D'Souza v. Union of India and Ors (AIR 1975 SC 1269); Lakshmi Devi P.N. v. Commissioner of Guruvayoor Devaswom and Ors (2015 (1) KLJ 575) and Paul A.O. v. Iringalakuda Town Cooperative Bank (2015 (3) KHC 459)]. There is no reason why the said principle would not apply against an action by the employer. This is especially so when there is no case of any fraud or deliberate concealment of facts or deliberate misstatement of facts, alleged to have been practised by the employee. W.P.(C) No.33497 of 2019 :- 6 :- 11. In the case at hand, the petitioner was absorbed in service with effect from 02.10.2001. His probation was declared on 12.10.2003. He was promoted as Driver Gr-I on 22.07.2009 and as Vehicle Inspector on 04.03.2016. He retired on 28.02.2018. The respondent never raised any objection regarding the date of absorption of the petitioner into regular service; the petitioner was given two promotions while in service. At this distance of time, the respondent is precluded, by applying the theory of sit back, from raising any challenge with regard to the date of absorption in service. 12. On the above discussions, I find the absorption of the petitioner to the regular services of the first respondent with effect from 02.10.2001, is not liable to be varied. The respondents shall determine the pension and pensionary benefits accordingly, and have the same disbursed to the petitioner within a period of four months from today. In the event of non-disbursal of W.P.(C) No.33497 of 2019 :- 7 :- the amounts within the period as directed, the petitioner shall be entitled to 9% interest on the amounts payable, from the date of this judgment. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge **WP(C).No.33497 OF 2019(J)** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**A TRUE COPY OF THE MEMO DATED 22.06.2000**| |---|---| ||**ISSUED BY THE PSC**| |**EXHIBIT P2**|**A TRUE COPY OF THE APPOINTMENT ORDER DATED**| ||**10.07.2000**| |**EXHIBIT P3**|**A TRUE COPY OF THE MEMO NO.P2-**| ||**4088/2000/KYLM DATED 24.7.2000 ISSUED BY**| ||**THE DISTRICT TRANSPORT OFFICER, KSRTC,**| ||**KAYAMKULAM**| |**EXHIBIT P4**|**A TRUE COPY OF THE CERTIFICATE DATED**| ||**20.08.2001 ISSUED BY DR.N.VIJAYAKUMAR,**| ||**CIVIL SURGEON, TALUK HOSPITAL, ALUVA**| |**EXHIBIT P5**|**A TRUE COPY OF THE ACCIDENT CUM WOUND**| ||**CERTIFICATE DATED 17.12.2000 ISSUED BY THE**| ||**GENERAL HOSPITAL, ERNAKULAM**| |**EXHIBIT P6**|**A TRUE COPY OF THE TREATMENT SUMMARY OF THE**| ||**PETITIONER ISSUE DBY THE MEDICAL TRUST**| ||**HOSPITAL, ERNAKULAM.**| |**EXHIBIT P7**|**A TRUE COPY OF THE MEMO DATED 5.6.2002**| ||**ISSUED BY THE DISTRICT TRANSPORT OFFICER,**| ||**KSRTC, KAYAMKULAM**| |**EXHIBIT P8**|**A TRUE COPY OF THE JUDGMENT DATED 27.7.2007**| ||**IN CC 3213/2002 ON THE FILES OF THE**| ||**JUDICIAL MAGISTRATE OF FIRST CLASS-I, ALUVA**| |**EXHIBIT P9**|**A TRUE COPY OF THE ORDER DATED 4.3.2016**| ||**ISSUED BY THE OFFICE OF THE 1ST RESPONDENT**| |**EXHIBIT P10**|**A TRUE COPY OF THE MEMO DATED 11.3.2016**| ||**ISSUED BY THE DISTRICT TRANSPORT OFFICER,**| ||**ATTINGAL**| |**EXHIBIT P11**|**A TRUE COPY OF THE MEMO DATED 27.2.2018**| ||**ISSUED BY THE 3RD RESPONDENT**| |**EXHIBIT P12**|**A TRUE COPY OF THE EMPLOYMENT CERTIFICATE**| ||**DATED 16.3.2012 ISSUED TO THE PETITIONER BY**| ||**THE 3RD RESPONDENT**| APPNENDIX- **WP(C).No.33497 OF 2019(J)** -2- **EXHIBIT P13 A TRUE COPY OF THE RECEIPT OF OPTION DATED 16.1.2019 ISSUED BY THE 3RD RESPONDENT EXHIBIT P14 A TRUE COPY OF THE LETTER P.I.O.NO.0611/2019 DATED 5.8.2019 ISSUED BY THE PUBLIC INFORMATION OFFICER, OFFICE OF HE 1ST RESPONDENT EXHIBIT P15 A TRUE COPY OF THE SERVICE BOOK OF THE PETITIONER EXHIBIT P16 A TRUE COPY OF THE JUDGMENT DATED 1.7.2013 IN WP(C)NO.3663/2013 AND CONNECTED CASES ON THE FILES OF THIS HONORABLE COURT OBTAINED FROM WWW.INDIANKANOON.COM EXHIBIT P17 A TRUE COPY OF THE MEMO DATED 7.09.2011 ISSUED BY THE 3RD RESPONDENT** **-----**