P. M. Hassan v. Kerala State Road Transport Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **WEDNESDAY, THE 4TH DAY OF DECEMBER 2013/13TH AGRAHAYANA, 1935** ## **WP(C).No. 27989 of 2012 (W)** **----------------------------------------** ## **PETITIONER:** ## **-------------------** **P.M. HASSAN, (DRIVER, K.S.R.T.C, SULTAN'S BATHERY DEPOT, RETIRED ON 30/6/2004), PANDIKASALA, MANGALASSERI, FEROKE P.O., KOZHIKODE.** **BY ADV. SRI.K.P.RAJEEVAN.** **RESPONDENTS:** **------------------------** **1. KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM - 695 023.** **2. EXECUTIVE DIRECTOR (VIGILANCE), K.S.R.T.C., TRANSPROT BHAVAN, FORT, THIRUVANANTHAPURAM - 695 023.** **3. DISTRICT TRANSPORT OFFICER K.S.R.T.C., SULTAN'S BATTERY DEPOT, WAYANAD DISTRICT - 673 592.** **BY SRI.BABU JOSEPH KURUVATHAZHA,S.C, K.S.R.T.C.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.27989/2012-W:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1. TRUE COPY OF THE PROCEEDINGS OF THE ED (V&S), TVM.NO.VLE2-64080/91/TVM DATED 13.09.93.** - **EXHIBIT P2. TRUE COPY OF THE ORDER NO.VLE 2-004829/94, THIRUVANANTHAPURAM DTD.7-4-1997.** - **EXHIBIT P3. TRUE COPY OF ORDER NO.RP7/99 DATED 17.07.1999 BY THE K.S.R.T.C. APPELLATE TRIBUNAL.** - **EXHIBIT P4. TRUE COPY OF JUDGMENT IN O.P.NO.28880/99 DTD.11.10.01 OF THIS HON'BLE COURT.** - **EXHIBIT P5. TRUE COPY OF ORDER NO.RP.38/01 DTD 03.08.02 OF THE K.S.R.T.C. APPELLATE TRIBUNAL.** - **EXHIBIT P6. TRUE COPY OF ORDER IN C.M.P.NO.45517/02 IN O.P.NO.26817/02 DTD. 19.09.02 OF THIS HON'BLE COURT.** - **EXHIBIT P7. TRUE COPY OF MEMO NO.E2-8012/03/8 BY DATED 16.11.02.** - **EXHIBIT P8. TRUE COPY OF CHARGE SHEET NO.VLE2-035865/02 DATED 04.10.2002.** - **EXHIBITP9. TRUE COPY OF SHOW CAUSE NOTICE NO.VLE2-035865/2002 DTD.27-1-2003.** - **EXHIBIT P10. TRUE COPY OF REPLY TO THE SHOW CAUSE NOTICE DTD. 18.02.2003.** - **EXHIBIT P11. TRUE COPY OF ORDER NO.VLE2/035865/2002 DATED 08.05.2003.** - **EXHIBIT P12. TRUE COPY OF SALARY SLIP OF THE PETITIONER FOR NOVEMBER AND DECEMBER 2002 AND APRIL 2003.** - **EXHIBIT P13. TRUE COPY OF APPEAL PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 12.05.2003.** - **EXHIBIT P14. TRUE COPY OF JUDGMENT DATED 28.05.03 IN W.P.(C)NO.16403 OF 2003.** - **EXHIBIT P15. TRUE COPY OF ORDER NO.D.DIS. 18821/03 (APL) DATED 19.06.2003.** - **EXHIBIT P16. TRUE COPY OF ORDER NO.D.DIS.25511/03 (APL) DTD.20.12.2003.** - **EXHIBIT P17. TRUE COPY OF MEMORANDUM NO.PL A.7/022487/2001 DATED 23.10.01.** - **EXHIBIT P18. TRUE COPY OF JUDGMENT IN W.P.(C) NO.3479 OF 2004 DATED 02.07.2004.** **Prv.** ## **W.P.(C).NO.27989/2012-W:** **EXHIBIT P19. TRUE COPY OF ORDER NO.VLE2-019522/2004 DATED 27.04.2005.** **EXHIBIT P20. A TRUE COPY OF JDUGMENT DATED 25.01.2010 IN WP(C)NO.19027 OF 2005.** **EXHIBIT P21. A TRUE COPY OF MEMORANDUM DATED 15.05.2010.** **EXHIBIT P22. A TRUE COPY OF REPRESENTATION FILED BY THE PETITIONER BEFORE THE MANAGING DIRECTOR OF THE CORPORATION ON 02.03.2012.** **EXHIBIT P23. A TRUE COPY OF JUDGMENT DATED 14.06.2012 IN W.P(C)NO.12987 OF THIS HON'BLE COURT.** **EXHIBIT P24. A TRUE COPY OF ORDER DTD.26.09.12 OF THE MANAGING DIRECTOR OF THE RESPONDENT CORPORATION.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **C.K. ABDUL REHIM, J. -----------------------------------W.P.(C). No. 27989 of 2012 --------------------------------------------------Dated this the 4[th] day of December, 2013** ## **JUDGMENT** Issue agitated in this writ petition has got a chequered history of litigations which the petitioner was constrained to undertake because of the totally unreasonable and arbitrary attitude of the 1[st] respondent Corporation and its officers. The petitioner is a Driver retired from the service of the 1[st] respondent on 30.06.2004. While in service, a disciplinary action was initiated against him based on charge sheet issued on 05.02.1992, alleging unauthorised absence with effect from 24.12.1990. The disciplinary action had culminated in Ext.P1 order dated 13.09.1993, imposing punishment of barring of two increments without cumulative effect. In the year 1994, disciplinary proceedings was initiated against the petitioner based on the very same allegation of unauthorised absence from 24.12.1990. By virtue of Ext.P2 order dated 07.04.1997 he was imposed with a punishment of compulsory retirement. Being unsuccessful in the challenges against Ext.P2, before the appellate authority and before the revisional authority, the WP(C).27989 /2012 2 petitioner had approached this court in O.P.No.28880/1999. Observing that the question of double jeopardy arises on the facts, this court directed the revisional authroity to reconsider the matter, in Ext.P4 judgment. In Ext.P5 order, the tribunal had set aside the order imposing punishment of compulsory retirement. Despite the petitioner was not permitted to rejoin duty till this court issued an interim direction as per Ext.P6. After permitting the petitioner to rejoin duty, he was again issued with Ext.P8 charge memo raising the very same allegation of unauthorised absence from 24.12.1990 onwards. The said disciplinary action had culminated in Ext.P11 order imposing punishment of removal of the petitioner from service, with effect from 24.12.1990. Appeal filed against Ext.P11 was rejected through Ext.P15 order. In a revision filed before the tribunal the matter was remanded to the appellate authority for fresh disposal. But Ext.P16 order was issued by the appellate authority upholding the punishment of removal from service. Ext.P16 was challenged by the petitioner in WP(C) No.3479/2004. During pendency of the said writ petition the petitioner retired on 30.06.2004. In Ext.P18 judgment, this court had quashed Ext.P11 order of removal of the petitioner from WP(C).27989 /2012 3 service as well as Ext.P16 order of the appellate authority. This court directed that it is only appropriate for the Managing Director of the 1[st] respondent Corporation to put a quietus to the issue. Therefore the matter was remanded for fresh consideration. But the Managing Director again issued Ext.P19 order confirming the punishment, without taking into consideration of the observations contained in Ext.P18 judgment. Ext.P19 was again subjected to challenge before this court in WP(C) No. 19027/2005. This court categorically found that, in Ext.P4 judgment itself there was a clear finding that it is a case of double jeopardy in as much as the petitioner had already suffered punishment of increment bar with respect to the unauthorised absence for the period from 24.12.1990 to 05.02.1992. Such a finding was again reiterated in Ext.P18 judgment. Despite in Ext.P19 the very same reason was mentioned to uphold the order of removal from service. It was also found by this court that the petitioner had retired from service and hence it is not possible to impose any order of punishment as contemplated under the relevant conduct Rules. Therefore while disposing WP(C).19027/05 in Ext.P20 judgment, this court observed that, the only question which may survive for WP(C).27989 /2012 4 consideration at this point of time is as to the manner in which the period of absence as well as the subsequent period from 8.5.2003 has to be dealt with. The relevant portion of Ext.P20 judgment is extracted below: _“ Having regard to the fact that the petitioner has by now attained the age of superannuation and has retired from service, at this distance of time. It is not possible to impose any order of punishment as contemplated in the conduct rules. Therefore, the only question which may at this point of time survive for consideration is the manner in which his period of absence and the period subsequent to 8.5.2003 is to be dealt with. This aspect of the matter has not so far engaged the attention of the 1[st] respondent. Ext.P19 is therefore quashed._ _At this point of time, all that is required to be done by the 1[st] respondent is to consider the case of the petitioner and decide on the manner in which his period of absence and the period subsequent to 8.5.2003 is to be dealt with. This the 1[st] respondent shall do, as expeditiously as possible, at any rate within two_ WP(C).27989 /2012 5 _months of production of a copy of this judgment. “_ 2. Consequent to the direction contained in Ext.P20 judgment, Ext.P21 order was issued by the 1[st] respondent. The period of absence from 24.12.1990 to the date of re-admission and the period after 8.5.2003 till the date of superannuation was directed to be treated as leave without allowance, which will not be counted for any service or pensionary benefits. Such a decision was taken in a highly cryptic manner, without illustrating any factual circumstance or without considering the issue on the basis of directions contained in Ext.P20 judgment. Therefore the petitioner submitted Ext.P22 representation before the Managing Director seeking review of the decision. When Ext.P22 was not considered, he had approached this court in a writ petition. In Ext.P23 judgment this court directed consideration and disposal of Ext.P22 within two months. Ext.P24 is the consequential order issued by the Chairman and Managing Director of the 1[st] respondent Corporation. The period of absence of the petitioner from 24.12.1990 till his re-admission to duty was treated as WP(C).27989 /2012 6 leave without allowance which cannot be counted for any service/pensionary service. The period from 8.5.2003 till his retirement on 30.6.2004 was treated as eligible leave which will be counted for pension and pensionary benefits. It is aggrieved by the said decision in Ext.P24, this writ petition is filed. 3. It is to be noticed that, by virtue of Ext.P1 proceedings punishment was imposed with respect to unauthorised absence of the petitioner, from 24.12.90 onwards till the date of the said order. But the fact reveals that, the petitioner continued in unauthorised absence and Ext.P2 order of compulsory retirement was issued. Ext.P2 order was set aside by the Tribunal in Ext.P5. But it is evident that the petitioner continued without re-joining duty till the date of Ext.P5. He had approached this court complaining about the refusal to permit re-joining of duty. Subsequently he was admitted to duty on 16.11.2002. Eventhough the petitioner contended that there was denial on the part of the respondents in permitting him to join duty, the period of absence till 16.11.2002 cannot be considered as duty, because there is no convincing proof to the effect that the WP(C).27989 /2012 7 petitioner was in any manner prevented from re-joining duty during the said period. Therefore the finding in Ext.P24 treating the period from 24.12.90 till 16.11.2002 as leave without allowance cannot be interfered with. 4. But with respect to the period after 8.5.2003 it is to be noted that, the petitioner was kept out of service on a totally illegal manner despite repeated observations made by this court in Ext.P4 and P18 judgments. The punishment of removal from service was repeatedly issued by the authorities without any basis, in a totally illegal, unreasonable and unjustifiable manner. Ultimately when this court in Ext.P20 judgment had clearly observed that all that is required to be done by the 1[st] respondent is to consider the case of the petitioner and to decide the manner on which the period of absence subsequent to 8.5.2003 is to be dealt with, the Managing Director had again gone into merits of the allegations regarding the unauthorised absence, in Ext. P24, and arrived at a conclusion that the petitioner had unauthorisedly absented from duty during the said period. It was observed that his service has not been benefited to the Corporation during WP(C).27989 /2012 8 the said period. But with respect to the period after 8.5.2003 it is observed that it can only be treated as eligible leave because the petitioner was re-admitted only on 16.11.2002 as per Ext.P6 interim order of this court. But the fact remains that, the petitioner worked in the respondent Corporation from 16.11.2002 to 8.5.2003. From 8.5.2003 onwards till his retirement he was kept out of service due to the illegal orders repeatedly issued by the Corporation. Hence question remains as to whether the benefits due for the said period can be denied to the petitioner. It is evident that the absence of the petitioner from duty for the period from 8.5.2003 till his retirement was not because of any fault on the part of the petitioner. On the other hand he was illegally kept out of service and prevented him from discharging duties, for no fault of his own. Such a denial was solely on the basis of the high handed actions on the part of the 1[st] respondent Corporation and its officials. Having prevented the petitioner from discharging his duties, the respondent cannot deny wages to him. In such case the principle of 'no work no pay' is not applicable as held by the hon'ble apex court in **Union** WP(C).27989 /2012 9 ## **of India and others vs. Jankiraman and others (1991 4 SCC 109).** 5. Under the above mentioned circumstances, the writ petition is allowed in part. Ext.P24 is hereby quashed to the extent it denied benefits to the petitioner for the period from 8.5.2003 to 30.6.2004. It is hereby declared that the petitioner is to be treated as continued in the service and duty during the said period. Consequently it is declared that the petitioner is eligible for all benefits deriving out of the service for the said period. The respondents shall re-work and compute the consequential benefits and make payment of the same to the petitioner at the earliest, at any rate within a period of three months from the date of receipt of a copy of this judgment. 6. It is to be clarified that the LWA period from 24.12.1990 till 16.11.2002 should also be reckoned as qualifying service for the purpose of pension and other pensionary benefits, since the period of LWA is falling prior WP(C).27989 /2012 10 to 10.6.2010, the date on which the KSRTC had adopted the Government Order on the basis of the amendment to Rule 26 of Part III KSR. C.K.ABDUL REHIM, JUDGE pn/pmn/ WP(C).27989 /2012 11