OP (KAT) No.371/2020

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 25TH DAY OF NOVEMBER 2020 / 4TH AGRAHAYANA, 1942** **OP(KAT).No.371 OF 2020** **AGAINST THE ORDER IN OA 788/2016 DATED 30-09-2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001** - **2 THE COMMISSIONER FOR RURAL DEVELOPMENT, COMMISSIONERATE OF RURAL DEVELOPMENT, SWARAJ BHAVAN, NANTHANCODE, THIRUVANANTHAPURAM, PIN 695 003** - **3 THE BLOCK DEVELOPMENT OFFICER, BLOCK DEVELOPMENT OFFICE, MANANTHAVADY, WAYANAD DISTRICT, PIN 670 645** ## **BY GOVERNMENT PLEADER** ## **RESPONDENT:** **M.A.JANCY, AGED 54 YEARS** **W/O. P.J THOMAS, EXTENSION OFFICER (WOMEN WELFARE) BLOCK DEVELOPMENT OFFICE, KUZHALMANNAM, PALAKKAD PIN 688 088** **RESIDING AT PAINADATH HOUSE, CATHERINE ROAD, OLLUKKARA P.O, THRISSUR DISTRICT PIN 686 655** **R1 BY ADV. SRI.K.JAJU BABU (SR.) R1 BY ADV. SMT.M.U.VIJAYALAKSHMI R1 BY ADV. SRI.BRIJESH MOHAN** ## **OTHER PRESENT:** ## **SRI. T.RAJASEKHARAN NAIR-SR.G.P.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 19-11-2020, THE COURT ON 25-11-2020 DELIVERED THE FOLLOWING:** OP (KAT) No.371/2020 -2- ## **J U D G M E N T** Dated this the 25[th] day of November, 2020 ## Gopinath, J: The State of Kerala and its officers have filed this original petition challenging order dated 30-09-2019 in OA No.788/2016 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram. The respondent herein who was the applicant before the Tribunal filed that original petition praying _inter alia_ for a direction that a period of absence from duty be treated as duty for all purposes and to disburse the pay and allowances for the said period. The documents referred to in this judgment are in the manner they are marked before the Tribunal. 2. While working as Extension Officer (Women Welfare) at Block Development Office, Mananthavady, the respondent applied for leave for the period from 14-11-2012 to 11-02-2013. However, leave was sanctioned only up to 28-11-2012. The respondent however continued on leave till 12-02-2013. A memo of charges came to be issued to her for unauthorised absence. According to her though she reported for duty on 12-02-2013, she was not allowed to either sign the attendance register or to attend her official duties. A reading of Annexures-A1 & A2 shows that the respondent was not allowed to rejoin duty on account of OP (KAT) No.371/2020 -3- the instruction from Block Panchayat President that she must be allowed to rejoin duty only after obtaining permission in writing from him. However, by Annexure-A3 letter dated 30-03-2013 she was directed to rejoin duty, following which she rejoined duty on 10-042013. 3. The respondent filed Annexure-A4 representation before the Commissioner for Rural Development seeking regularisation of her absence for the period after 28-11-2012 to 12-02-2013 and requested that the period from 12/13-02-2013 to 10-04-2013 when she was kept out of duty must be treated as duty for all purposes. The Commissioner for Rural Development issued an order on 20-03-2014 (Annexure-A6) directing to treat the period up to 11-02-2013 as eligible leave. The grievance of the respondent is that the period from 13-02-2013 to 1004-2013 during which time she was prevented from attending duty has also been directed to be treated as eligible leave. She, therefore, approached the Government through Annexure-A7 representation which was rejected by the Government through Annexure-A9 dated 1410-2014. Annexure-A9 was set aside by the Tribunal through AnnexureA10 order remanding the matter to the Government and directing that the entire matter be reconsidered after affording an opportunity of hearing to the respondent. Following the remand and after hearing the OP (KAT) No.371/2020 -4- respondent the Government has passed Annexure-A12 order again rejecting the request of the petitioner. 4. The Tribunal on a consideration of the matter found that the respondent was wrongly kept out of service for the period from 12/1302-2013 to 10-04-2013 and as a consequence held that she was entitled to treat the period as duty for all purposes. 5. The Learned Government Pleader submits that this finding is contrary to law and ought to be set aside. He would contend that even assuming that the contention of the respondent that she was prevented from attending duty from 13-02-2013 is correct she had not approached any higher authority to redress her grievance and her only request through Annexure-A13 was to post her to some other Block. He would submit that she should have immediately approached the Government or the Commissioner for Rural Development if she was not permitted to attend duties from 13-02-2013. Instead, she remained on unauthorised absence till 10-04-2013. He would contend with reference to Rule 65 of Part I KSR that leave is not a matter of right and the discretion is left with the authority concerned either to refuse leave or to revoke any leave already granted. He would point out that though the respondent was initially granted leave up to 28-11-2012, she continued on unauthorised absence till 11-02-2013. He would submit that this was at OP (KAT) No.371/2020 -5- a time when her services were urgently required in the office. 6. The learned counsel appearing for the respondent, on the other hand, contends that since the period of absence till 11-02-2013 had been regularised already, there is no question of re-opening that issue again. He would submit that the entire period up to 11-02-2013 was within the period of leave to which the respondent was entitled. He would point out with reference to Annexures-A1 & A2 that the respondent was prevented from attending duties from 13-02-2013 and therefore the period during which she was not permitted to attend duty is to be treated as service for all purposes going by the law laid down by this court in _**State of Kerala v. Joseph Ceasar [1998 (2) KLT 194]**_ 7. We have considered the contentions raised by either side. We find that the learned Government Pleader is well-founded in his submission that the respondent illegally and without just reason continued on leave for the period up to 11-02-2013 though leave was sanctioned only up to 28-11-2012. Though the respondent submits that the leave was availed on account of genuine reasons we are of the opinion that the respondent could not have assumed that she would be granted leave up to 11-02-2013 and remain absent after the leave granted had expired. However, since that period of leave up to 11-02- OP (KAT) No.371/2020 -6- 2013 has already been regularised by Annexure-A6 order dated 20-032014 we cannot consider that issue in these proceedings. If the petitioners wanted to impose any penalty on the respondent for unauthorised absence they should have completed the disciplinary proceedings initiated by the issuance of memo of charges. We are however informed that no further steps were taken after issuance of memo of charges and by now the respondent has already retired from service. 8. That brings us to the question as to whether the petitioners were right in holding that the period from 13-02-2013 to 10-04-2013 should also be treated as eligible leave. We notice from Annexure-A1 & A2 that the respondent was not permitted to rejoin duty on account of the instruction from the President of the Block Panchayat. We are unable to find the authority that was being exercised by the President of the Block Panchayat. It is true that the respondent could have approached the higher authorities immediately against the refusal of the authorities concerned to allow her to rejoin duty on 13-02-2013. The Tribunal appears to have taken a plausible view though the conduct of the respondent in extending her leave without permission is only to be deprecated. OP (KAT) No.371/2020 -7- 9. We refrain from interfering with the order of the Tribunal in the exercise of jurisdiction vested under Article 227 of the Constitution of India. This is also taking into account the fact that the respondent has already retired from service and it is stated before us that all benefits have been released to her treating the period from 13-02-2013 to 10-04-2013 as duty for all purposes. The original petition is dismissed. No costs. (Sd/-) **A. M. SHAFFIQUE Judge** (Sd/-) **GOPINATH P. Judge** ## **AMG** OP (KAT) No.371/2020 -8- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE O.A NO. 788/2016 ALONG WITH EXHIBITS BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL.** - **ANNEXURE A1 TRUE COPY OF THE COMMUNICATION NO. A.1917/12 DATED 12-02-2013 ISSUED BY THE BLOCK DEVELOPMENT OFFICER, MANANTHAWADI TO THE APPLICANT** - **ANNEXURE A2 TRUE COPY OF LETTER DATED 12-02-2013 ISSUED BY THE CHAIRMAN OF DEVELOPMENT STANDING COMMITTEE TO THE SECRETARY OF MANANTHAWADI BLOCK PANCHAYATH.** - **ANNEXURE A3 TRUE COPY OF COMMUNICATION NO. A 1917/2012 DATED 30-03-2013 ISSUED BY THE SECRETARY OF MANANTHAWADI BLOCK PANCHAYATH TO THE APPLICANT** - **ANNEXURE A4 TRUE COPY OF REPRESENTATION DATED 13-08-2013 ALONG WITH THE ACKNOWLEDGEMENT CARD SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT** - **ANNEXURE A5 TRUE COPY OF ORDER DATED 25-11-2013 IN O.A NO. 2532/2013 OF THIS HON'BLE TRIBUNAL** - **ANNEXURE A6 TRUE COPY OF ORDER DATED 20-03-2014 ISSUED BY THE 2ND RESPONDENT** - **ANNEXURE A7 TRUE COPY OF THE REPRESENTATION DATED 11-042014 SUBMITTED BY THE APPLICANT BEFORE THE 1ST RESPONDENT** - **ANNEXURE A8 TRUE COPY OF ORDER DATED 14-07-2014 IN OA NO. 1149/2014 OF THIS HON'BLE TRIBUNAL** - **ANNEXURE A9 TRUE COPY OF ORDER DATED 14-10-2014 OF THE 1ST RESPONDENT** - **ANNEXURE A10 TRUE COPY OF ORDER DATED 1-10-2015 IN OA NO. 450/2015 OF THIS HON'BLE TRIBUNAL** - **ANNEXURE A11 TRUE COPY OF REQUEST SUBMITTED BY THE APPLICANT BEFORE THE 1ST RESPONDENT ON 18-01-2016** - **ANNEXURE A12 TRUE COPY OF ORDER DATED 30-10-2016 ISSUED BY THE 1ST RESPONDENT** OP (KAT) No.371/2020 -9- - **ANNEXURE A13 TRUE COPY OF REQUEST DATED 13-02-2013 SUBMITTED BY THE APPLICANT BEFORE THE 2ND RESPONDENT** - **ANNEXURE A14 TRUE COPY OF ACKNOWLEDGEMENT CARD PROVIDING RECEIPT OF ANNEXURE A13 BY THE 3RD RESPONDENT.** - **ANNEXURE A15 TRUE COPY OF REPORT DATED 07-07-2014 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED 19-082016 FILED BY THE SECOND PETITIONER BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL** - **EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT DATED 20-122017 FILED BY THE FIRST PETITIONER BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL** **EXHIBIT P4 CERTIFIED COPY OF THE ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DATED 30-09-2019**