## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE SMT. JUSTICE P.V.ASHA**
**FRIDAY, THE 28TH DAY OF FEBRUARY 2020 / 9TH PHALGUNA, 1941**
## **WP(C).No.22628 OF 2009(W)**
## **PETITIONER/S:**
**P.P.JOSE, AGED 60 YEARS BRANCH MANAGER, RETD., LIFE INSURANCE CORPORATION OF INDIA,, PALAKATTU HOUSE, THIRUVAMKULAM P.O.,, ERNAKULAM DISTRICT.**
**BY ADV. SRI.GEORGE JACOB (JOSE)**
## **RESPONDENT/S:**
- **1 THE LIFE INSURANCE CORPORATION OF INDIA, CENTRAL OFFICE, YOGAKSHEMA,, JEEVAN BHIMA MARG., POST BOX NO.19953,, MUMBAI-21, REP. BY ITS MANAGING DIRECTOR.**
- **2 THE CHAIRMAN, LIFE INSURANCE CORPORATION OF INDIA, YOGAKSHEMA, JEEVAN BHIMA MARG.,, POST BOX NO.19953, MUMBAI-21.**
- **3 THE ZONAL MANAGER LIFE INSURANCE CORPORATION OF INDIA,, ANNA SALAI, CHENNAI-600 002.**
- **4 THE SENIOR DIVISIONAL MANAGER LIFE INSURNACE CORPORATION OF INDIA,, JEEVAN PRAKASH, POST BOX NO.1133,, M.G.ROAD, COCHIN.**
- **5 THE SENIOR DIVISIONAL MANAGER LIFE INSURANCE CORPORATION OF INDIA, DIVISIONAL OFFICE, ARCOT ROAD,, VELLORE-632 004.**
## **R1 BY ADV. SRI.S.EASWARAN**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.02.2020, THE COURT ON 28.02.2020 DELIVERED THE FOLLOWING:**
## **P.V.ASHA, J.**
## **---------------------------W.P.(C) No.22628 of 2009 ---------------------------Dated this the 28[th] day of 2020**
## **JUDGMENT**
The petitioner who voluntarily retired while working as Branch Manager under the respondents is aggrieved by the denial of pay and allowances, vehicle insurance premium for the year 2005-06 and gratuity linked lumpsum incentive, for the period from 14.11.2005 to 31.03.2006.
2. While working as Branch Manager in the Cochin Branch petitioner was transferred to Pondicherry Branch as per order dated 4.5.2005. Petitioner challenged the transfer filing WP(C) No.16991/2005 and continued at Cochin branch on the basis of interim order passed in that Writ Petition. Though the Writ Petition was allowed, the Writ Appeal filed by LIC was allowed by judgment dated 11.11.2005. But petitioner did not report at Pondicherry. He submitted applications for leave on the strength of medical certificates. Finally he requested for voluntary retirement. In the SLP filed by him against the judgment in the Writ Appeal, the Apex Court directed consideration of his application for voluntary retirement. LIC issued Ext.P11 order dated 28.03.2006 granting him permission to retire
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with effect from 01.04.2006 and ordered that the period of his absence from 14.11.2005 till date of relief would be treated as Extraordinary leave on loss of pay. Petitioner claims that the period of absence is liable to be treated as duty/eligible leave.
3. The case of the petitioner is that after the
transfer was ordered and interim order of stay was granted in his Writ Petition he had to enter on sick leave on account of severe back pain, acute hyper tension and bronchial asthma. It is stated that LIC had referred him to their Medical Officer and in Ext.P1 medical certificate the medical referee of the Corporation opined that petitioner is known case of hypertension for 10 years, with bronchial asthma for 15 years, he sustained injuries in a road transport accident in 1985 based on which he has got limb shortening of 5cms; has got low back ache. Stating that BP was under control, he opined that petitioner could undertake office job; but field work would aggravate his back strain due to limp shortening. Petitioner stated that he had submitted Ext.P3 application for leave on 11.11.2005 along with medical certificate stating that he was admitted in a hospital for hyper tension and acute bronchial asthma and requesting for leave with half pay for two weeks from
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11.11.2005. It was followed by another application dated 18.11.2005 along with Ext.P4 medical certificate recommending 30 days of absence from 18.11.2005. Petitioner thereafter submitted Ext.P5 representation to the Senior Divisional Manager, Ernakulam on 24.11.2005 stating that he was hospitalized. He requested for extension of sick leave with half pay upto 17.12.2005 in continuation of the leave applied for on 11.11.2005. He stated that he had received the relieving order dated 12.11.2005. He submitted Ext.P6 representation dated 05.12.2005 before the Zonal Manager of LIC, South Zone, Chennai stating that he was unable to move out of Ernakulam due to his physical and psychological conditions and on medical opinion. He therefore requested for permission to retire voluntarily. It was followed by Ext.P7 representation addressed to the Senior Divisional Manager, Velloor Division requesting for extension of sick leave by 30 days from 17.01.2006, enclosing medical certificate from Principal of the Govt. Aayurveda College, Thripunithura. He submitted another representation Ext.P9 on 01.02.2006 pointing out that he was not paid salary for the period from October 2005 onwards. It was stated that he had to his credit 6 days of casual leave, 220 days of privilege leave, 242 days of sick leave with half pay and 60 days of
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sick leave with full pay as on 31.10.2005. He requested for orders sanctioning the pay and allowances for the period from November 2005 onwards. By Ext.P10 letter dated 16.02.2006 addressed to the Senior Divisional Manager, Velloor Division he requested for further extension by six weeks from 16.02.2006. While so the Senior Divisional Manager, Velloor as per Ext.P11 letter dated 28.03.2006 informed him that the competent authority has accepted his request for voluntary retirement wef 01.04.2006 under rule 19 (2a)(b) of the LIC of India (Staff) Rules 1960 subject to recovery of all dues. It was also informed that his absence from duty from 14.11.2005 upto date of relief would be treated as extra ordinary leave on loss of pay. It was also stated that acceptance of his request for voluntary retirement and consequent settlement of terminal benefits would be subject to the outcome of the SLP pending before the Supreme Court. Petitioner thereupon submitted Ext.P12 representation dated 10.04.2006 before the Senior Divisional Manager, Velloor- 5[th] respondent stating that he was entitled to full pay for the period from 14.11.2005. He stated that extraordinary leave can be granted only when there is no leave to his credit. But in his case he was having sufficient leave in his credit. It was also stated
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permission for voluntary retirement should have been granted without any condition. According to him when leave applications are submitted with the support of medical certificates and those applications are not rejected, he was entitled to the pay and allowances from 14.11.2005. The petitioner has also approached the Chairman with Ext.P13 representation dt.21.3.2007. By Ext.P14 order dated 29.07.2006 petitioner was informed that he was relieved from Kochi Branch Office on 13.11.2005; he did not report for duty at Pondicherry; based on his application for voluntary retirement submitted in the meanwhile, he was relieved from LIC on 31.03.2006. It was stated that all his terminal benefits were settled after 01.04.2006. In respect of Form16 for the year 2005-06 he was directed to approach the Cochin Branch. By Ext.P15 representation dated 18.05.2006 petitioner requested to release the benefits due to him pending decision in the SLP. It is stated that petitioner had approached this Court filing WP(C) No.15713/2007 for a direction to the respondents to sanction his application for sick leave. But the Writ Petition was dismissed by judgment dated 22.08.2008 for want of territorial jurisdiction. Petitioner filed W.A.No.2055/2008 against that judgment and by Ext.P16 judgment dated 25.02.2009 this Court disposed of
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the Writ Appeal recording the submission of the counsel for respondents that the Revision Petition filed by him would be disposed of while leaving open all the contentions. It is stated that Ext.P17 order was passed thereafter on 28.02.2009 informing him that the competent authority had already treated the period of his absence as Extra Ordinary Leave (EOL). It was also stated that he applied for sick leave only after getting transfer order posting him at Pondicherry Branch Office and that he had gone on leave only to avoid joining the new post on transfer. Therefore the decision of the competent authority was not interfered with. The petitioner is challenging the orders Exts.P11 and P17 and seeking for a direction to grant him the benefits for the period from 14.11.2005.
4. Respondents have filed a counter affidavit. A
preliminary objection is raised with respect to the maintainability of the Writ Petition pointing out that the orders under challenge are passed by authorities who are situated beyond the territorial jurisdiction of this Court and no cause of action arose within the State. It was also pointed out that WP(C) No.15713/2007 filed by the petitioner was already dismissed for want of jurisdiction. It was stated that when the Writ Appeal came up for
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consideration the respondents had informed this Court that his representation would be considered and that Writ Appeal was disposed of recording it, without considering it on merits. It is stated that the orders Exts.P11 as well as Ext.P17 are issued by authorities stationed outside the territorial jurisdiction of this Court and therefore the Writ Petition is not maintainable. It is pointed out that the petitioner was transferred to the Branch Office Pondicherry. The Division Bench had allowed the Writ Appeal filed by the respondents on 11.11.2005 and thereafter the petitioner was relieved from the jurisdiction of the 4[th] respondent with direction to join duty in the branch office at Pondicherry. It is stated that despite directions and warning, that departmental proceedings would be initiated, petitioner did not join duty on the basis of the order of transfer. It is their case that the petitioner was placed outside the jurisdiction of this court from 12.11.2005 onwards. It is also their case that he submitted application for sick leave after he was relieved from the branch office at Ernakulam. Producing Ext.R4(a) letter dated 28.11.2005 it is pointed out that the application for leave submitted by petitioner was before the 5th respondent for consideration and that 4th respondent was not supposed
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to consider or pass orders on those applications. It is also their case that the decision to permit voluntary retirement was taken when the petitioner was not under the control of the 4[th] respondent.
5. On merits, the respondents have stated that the petitioner and his counsel were present inside the court before the Division Bench at the time when the judgment was pronounced in the Writ Appeal on 11.11.2005 and it was only thereafter he preferred the leave application which was received by the 4[th] respondent on 12.12.2005. It is stated that petitioner was relieved on 12.11.2005 as stated in Ext.R4(c) report dated 14.11.2005 and that since the attempt to serve the relieving order on petitioner failed when his wife also refused to receive it, it was pasted in the notice board of the Divisional office. Respondents have stated that though leave was not sanctioned, petitioner did not report; As per Regulation 30(1) of the Staff Regulations 1960 an employee shall not absent himself from duty without obtaining permission from the competent authority; as per Regulation 61 of Chapter V of the Regulations also leave shall not be availed unless it is specifically sanctioned; therefore, the absence of the petitioner without obtaining sanction can only be treated
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as extraordinary leave on loss of pay; under Regulation 65 it is upto the competent authority to treat the period of absence without sanctioned leave as extraordinary leave without pay. Therefore, it is stated that the fact that the petitioner has got other leave to his credit will not be of any benefit to him. It is upto the discretion of the Corporation to grant, refuse or revoke leave of any description. It is their further case that the petitioner has not challenged the order intimating him that his absence would be treated as unauthorised absence. It is stated that the respondents decided to accept his application for voluntary retirement, taking a lenient view instead of taking disciplinary action. It is also stated that under Regulation 30(2), such absence can be treated as extraordinary leave and under Regulation 69(4), salary is not admissible for the said period. According to the respondents, as long as the petitioner has not challenged the order relieving him from service consequent to the disposal of the Writ Appeal, he cannot claim that the period of absence is liable to be treated as duty.
6. The contention of the petitioner is that the Writ Petition is maintainable before this Court as he has submitted all his applications from Kerala and he has
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received the orders including those relating to voluntary retirement in his address in Kerala. He has also received certain communications even from the 4[th] respondent. Relying on the judgment of the Division Bench in _**Sudharshanan v. Union of India**_ [2018 (5) KHC 146 (DB)] and _**Nawal Koshore Sharma v. Union of India**_ [(2014 ) 9 SCC 329] the learned counsel for the petitioner submitted that the Writ Petition is liable to be considered on merits. It is also pointed out that even though W.P(C).No.15713/2007 filed by petitioner was dismissed for want of jurisdiction, while disposing of the Writ Appeal, all questions were left open.
7. The further contention of the petitioner is that the
action of the respondents in treating the period of his absence when he was in the hospital and when he submitted his applications for leave on medical grounds with the support of medical certificates, as extraordinary leave without pay is unsustainable, when he has other leave to his credit. According to him, if at all there was any doubt or disagreement for the respondents over the medical certificate or the reason stated in the application for leave, the respondents ought to have subjected him to examination by a Medical Board or even a Medical Officer.
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8. In view of the preliminary objection raised by the respondents it is necessary to examine the maintainability of the Writ Petition. The prayers in the writ petition are the following:
_i)to issue a writ in the nature of certiorari or other appropriate writ or order quashing Ext.P17 order._
_ii)To issue a writ in the nature of mandamus or other appropriate writ/or order directing the respondents to sanction the various applications submitted by the petitioner sick leave supported by Medical Certificate and to grant him pay and allowances for the period from 14.11.2005 to 31.3.2006 along with interest at the rate of 18% per annum from 1.4.2006 till the date of disbursement_
_iii)to issue a writ in the nature of mandamus directing the respondents to reimburse to the petitioner vehicle insurance premium and the gratuity linked lumpsum incentive admissible to him within a specified time limit._
_IV)To issue a writ in the nature of certiorari or other appropriate writ or order quashing Ext.P11 order._
_V)To issue a declaration that the petitioner is entitled to be disbursed with pay and allowances and other consequential benefits from 14.11.2005 to 31.3.2006, vehicle insurance premium for 2005-06 and gratuity linked lumpsum inventive for the period from 14.11.2005 till 31.3.2006 along with interest at the rate of 18% per annum from 1.4.2006 till the date of disbursement._
## 9. The orders Exts.P11 and P17, challenged in the Writ
Petition are orders issued by the Senior Divisional Officer, Vellore and Chairman of LIC respectively, both of whom are stationed outside the state of Kerala. The grievance of the petitioner is as against the non-
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sanctioning of leave for the period from 14.11.2005 to 31.03.2006 and against the consequential orders by which the period of his absence is treated as EOL. According to the respondents all these applications were received after the petitioner was relieved from branch office, Kochi on 12.11.2005. There is no dispute regarding the order relieving him. These applications are seen received after the transfer was upheld by the Division Bench in the judgment. Ext.R4(b) order would show that petitioner was relieved from Kochi Office on 12.11.2005 immediately after
the judgment dated 11.11.2005 in the Writ Appeal. Ext.R4(a) order dated 28.11.2005 would show that the Senior Divisional Ernakulam had forwarded petitioner's applications for leave to the Divisional Office, Vellore and petitioner was informed about the same, stating that he was already relieved from Kochi on 12.11.2005. But petitioner continued to submit applications for leave to the office at Ernakulam which were forwarded to the officers at Vellore/Chennai. By Ext.R4(d) letter dated 21.12.2015 of the Regional Manager, South Zone, Chennai, petitioner was directed to report for duty at Pondicherry immediately, informing him that he had been on unauthorised absence even after repeated directions of the superior
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Officers. The grievance of the petitioner is as against the period during which he was absent after he was relieved from Kochi.
10. In order to examine whether the Writ Petition can
be entertained in these circumstances it is necessary to have a look at Article 226(2) of the Constitution of India which reads as follows:
_“(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.”_
Therefore there should be a cause of action, which arose wholly or in part, within the territorial jurisdiction of this Court for entertaining the Writ Petition. In _**Union of**_
_**India**_ **v.** _**Adani Exports Ltd:** (2002)1SCC 567_ , the Apex Court held that in order to confer jurisdiction on a High Court to entertain a Writ Petition it must disclose that the integral facts pleaded in support of the cause of action constitutes a cause which would empower the Court to decide the dispute and the entire or a part of it arose within its jurisdiction. The facts pleaded should have relevance of
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the _lis_ so as to give rise to a cause of action within the Court’s territorial jurisdiction. This Court would entertain the Writ Petition only if the integral part of the cause of action arose within Kerala.
11. The issue whether the residence of a person or service of an order on that person is effected within the jurisdiction of this Court, would be sufficient for this Court to exercise its jurisdiction under Article 226, was considered at least in two judgments of the Full Bench of this Court. The Full Bench of this Court in _**Indian Maritime**_
_**University V Viswanathan:** 2014(4) KLT 798 (FB)_ , has elaborately considered various judgments on the issue and reiterated the dictum laid down by the Full Bench in _**Nakul**_
_**Deo Singh V Union of India:** 1999(3) KLT 629_ and held that if the action complained takes place outside the jurisdiction and the appeal is also rejected by authorities outside the jurisdiction, cause of action wholly arises outside the jurisdiction. In the judgment in _**Maritime University's**_ Case, the Full Bench has analysed a series of the judgments of the Apex Court and of this court including the Full Bench judgment in _**Nakul Deo's**_ case and held that the place where order is served on a person would not be a
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factor relevant to determine the place where cause of action arose. In that case the withdrawal of appointment of Assistant Professor under the respondent University by orders/communications issued from Chennai and received in Kerala were under challenge. The respondent submitted application pursuant to the notification issued from Chennai. The fact that the respondent submitted his
application while residing in Kerala or that the respondent received the communications relating to the selection process and regarding appointment and its withdrawal, in his address in Kerala was held insufficient for this court to entertain a Writ Petition challenging the withdrawal of appointment. In the light of the dictum laid down in those judgments, I have also held in my judgment in _**Mohan Sigh v. Director of CISF:** 2018(2) KLT 272_ that the mere service of orders on a person within Kerala State or even submitting a revision petition from the state to authorities stationed outside would not constitute integral part of cause of action which would empower this court to entertain a Writ Petition. That judgment was upheld by the Division Bench in the judgment in W.A.No.471 of 2018.
12. Once the petitioner was relieved from the office at
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Kochi on 12.11.2005, the applications for leave were to be considered by the 5th respondent at Chennai and in the event of any appeal, the authority to consider the same is respondent no.3 and thereafter respondent no.2. The petitioner's grievance arises on account of the action of the respondents who are in Chennai and outside the State of Kerala. Just because petitioner submitted his applications while residing in Kerala it cannot be said that part of cause of action arose within the jurisdiction of this Court. The fact that Exts.P11 and P17 orders were served on him within Kerala would also not bring the matter within the jurisdiction of this court. The grievance of the petitioner is with respect to the incidents which occurred after his transfer from Kochi and after he was relieved from Kochi. It does not relate to any matter prior to 12.11.2005 when he was relieved on transfer. It cannot also be said that at least a part of the cause of action has arisen within the jurisdiction of this court. It is seen that all the orders subsequent to his transfer to Pondicherry are issued by officers stationed outside Kerala. The order rejecting the request of the petitioner to grant leave, the orders directing the petitioner to report for duty, the order according sanction for voluntary
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retirement as well as the order that his period of absence upto 31.03.2006 would be treated as EOL not eligible for pay are all issued by officers in Chennai or elsewhere beyond the jurisdiction of this Court.
13. In the factual circumstances of this case, the judgment in _**Sudharshanan's**_ case (supra) would not apply to the facts of this case, as the Division Bench found that the respondents therein had not raised any objection as to maintainability of the Writ Petition. It was a case where request was made for disability pension. In this case the complaint of the petitioner is against non-sanctioning of leave and against treating the period of absence as unauthorised absence. The judgment in _**Nawal Kishore Sharma's**_ case also will not apply, as the apex court has in para.18 of the judgment observed that the respondents had already complied with an interim order passed after they entered appearance, without raising any objection as to territorial jurisdiction.
In the above view of the matter, it cannot be said
that integral part of cause of action arose within the jurisdiction of this Court or that Writ Petition can be entertained under Article 226 of the Constitution of India.
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Hence Writ Petition is dismissed, accepting the objection raised by the respondents on the question of maintainability. Petitioner would be at liberty to move the appropriate forum.
## **Sd/-**
**P.V.ASHA**
rkc
**JUDGE**
## **APPENDIX**
||**APPENDIX**|
|---|---|
|**PETITIONER'S/S**|**EXHIBITS:**|
|**EXHIBIT P1**|**TRUE COPY OF THE LETTER DATED 14.6.2005 OF**|
||**THE MEDICAL REFEREE ADDRESSED TO THE 4TH**|
||**RESPONDENT**|
|**EXHIBIT P2**|**TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED**|
||**BY THE SENIOR MEDICAL OFFICER**|
|**EXHIBIT P3**|**TRUE COPY OF THE APPLICATION DATED**|
||**11.11.2005**|
|**EXHIBIT P4**|**TRUE COPY OF THE MEDICAL CERTIFICATE DATED**|
||**18.11.2005**|
|**EXHIBIT P5**|**TRUE COPY OF THE APPLICATION DATED**|
||**24.11.2005**|
|**EXHIBIT P6**|**TRUE COPY OF THE APPLICATION FOR RETIREMENT**|
||**DATED 5.12.2005**|
|**EXHIBIT P7**|**TRUE COPY OF THE APPLICATION DATED**|
||**17.1.2006 REQUESTING FOR EXTENSION OF SICK**|
||**LEAVE**|
|**EXHIBIT P8**|**TRUE COPY OF THE MEDICAL CERTIFICATE DATED**|
||**17.1.2006**|
|**EXHIBIT P9**|**TRUE COPY OF THE LETTER DATED 1.2.2006**|
||**SUBMITTED BY THE PETITIONER**|
|**EXHIBIT P10**|**TRUE COPY OF THE APPLICATION SUBMITTED BY**|
||**THE PETITIONER**|
|**EXHIBIT P11**|**TRUE COPY OF THE COMMUNICATION DATED**|
||**28.3.2006 OF THE 5TH RESPONDENT**|
|**EXHIBIT P12**|**TRUE COPY OF THE LETTER DATED 10.4.2006**|
||**ADDRESSED TO THE 5TH RESPONDENT**|
|**EXHIBIT P13**|**TRUE COPY OF THE REPRESENTATION DATED**|
||**21.10.2007 BEFORE THE 2ND RESPONDENT**|
|**EXHIBIT P14**|**TRUE COPY OF THE COMMUNICATION DATED**|
||**29.7.2006 OF THE 5TH RESPONDENT**|
|**EXHIBIT P15**|**TRUE COPY OF THE PETITION DATED 18.5.2006**|
||**ADDRESSED TO R3**|
|**EXHIBIT P16**|**TRUE COPY OF THE JUDGMENT DATED 25.2.2009**|
||**IN W.A.NO.2055 OF 2008**|
|**EXHIBIT P17**|**TRUE COPY OF THE COMMUNICATION DATED**|
## **28.2.2009 RECEIVED BY THE PETITIONER REFERREING TO EXT.P13 APPEAL**
## **RESPONDENT'S/S EXHIBITS:**
|**EXHIBIT R1**||**NIL**|
|---|---|---|
|**EXHIBIT R2**||**NIL**|
|**EXHIBIT R3**||**NIL**|
|**EXHIBIT R4**|**A**|**COPY OF THE LETTER DATED 28.11.2005 ISSUED**|
|||**BY THE 5TH RESPONDENT**|
|**EXHIBIT R4**|**B**|**COPY OF THE ORDER DATED 12.11.2005 ISSUED**|
|||**BY THE 5TH RESPONDENT**|
|**EXHIBIT R4**|**C**|**COPY OF THE REPORT DATED 14.11.2005**|
|||**SUBMITTED BY THE OFFICIALS OF THE BRANCH**|
|||**OFFICE, THOMPPUMPADY**|
|**EXHIBIT R4**|**D**|**COPY OF THE LETTER DATED 21.12.2005 ISSUED**|
|||**BY THE REGIONAL MANAGER OF THE CORPORATION**|
|||**TO THE PETITIONER**|
|**EXHIBIT R4**|**E**|**COPY OF THE LETTER DATED15.2.2006 ISSUED BY**|
|||**THE 5TH RESPONDENT TO THE PETITIONER**|