S. Ramanathan and Others v. The Secretary Kerala State Electricity Board Ltd. & Others

W. P. (C) No. 17482 of 2016 -1- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **& THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 26[TH] DAY OF JULY 2022 / 4TH SRAVANA, 1944 WP(C) NO. 17482 OF 2016** ## **PETITIONER/S:** - **1 S.RAMANATHAN AGED 70 YEARS S/O. T SUBBIAN ACHARY, AGED 70 YEARS, RETIRED ASSISTANT ENGINEER, KSEB, T.C 39/1754(5),"SANGEETH", H NO.36,YAMUNA NAGAR, 1ST STREET, MANACAUD P.O, THIRUVANANTHAPURAM** - **ADDL. 2 GIRIJA KUMARI S., W/O RAMANATHAN S.(LATE), AGED 58 YEARS, T.C. 39/1754 (5), “SANGEETH”, HOUSE NO. 36, YAMUNA NAGAR, 1ST STREET, MANACAUD P.O., THIRUVANANTHAPURAM – 695 009.** - **ADDL. 3 SANGEETHA G., W/O P.M. SELVAPERUMAL, AGED 42 YEARS, T.C. 39/1754 (5), “SANGEETH”, HOUSE NO. 36, YAMUNA NAGAR, 1ST STREET, MANACAUD P.O., THIRUVANANTHAPURAM – 695 009.** - **ADDL. 4 ANUSHA G., W/O SREEKANTH S., AGED 40 YEARS, FLAT NO.202, DREAM FLOWER CLAIRE, KONTHURUTHY, SCHOOL PADI STOP, THEVARA, ERNAKULAM, COCHIN – 682 013.** - **ADDL. 5 BRINDA SHUNMUGARAJA, W/O SHANMUGARAJA S.A., AGED 37 YEARS, BBCL ASHRAYA, FLAT NO. 3A, BLOCK B, 3RD FLOOR, NO. 118, PILLAIYARKOIL STREET, OKKIYAM THURAIPAKKAM, CHENNAI – 97.** **ADDITINAL PETITIONERS IMPLEADED BY ORDER DATED 26.07.2022 IN I.A. NO. 1 OF 2019.** **BY ADVS. SRI.S.RAMESH SRI.NAVEEN.T SMT.POOJA SURENDRAN** ## **RESPONDENT/S:** - **1 THE SECRETARY KERALA STATE ELECTRICITY BOARD LTD VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM 695 004** - **2 THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVAN,PATTOM, THIRUVANANTHAPURAM- 695 004.** W. P. (C) No. 17482 of 2016 -2- **3 THE DEPUTY CHIEF ENGINEER KERALA STATE ELECTRICITY BOARD LTD GENERALATION CIRCLE, MOOZHIYAR 689 712 4 KERALA LOK AYUKTHA OFFICE OF THE KERALA LOK AYUKTA, VIKAS BHAVAN, THIRUVANANTHAPURAM 695 033 REPRESENTED BY ITS REGISTRAR BY ADVS.SRI.K.S.ANIL, SC, KSEB SMT.ANEETHA A.G., SC, KSEB SMT. RENU D.P. FOR R4** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W. P. (C) No. 17482 of 2016 -3- ## **J U D G M E N T** ## Shaji P. Chaly, J. This writ petition is filed by the complainant in complaint No. 1185 of 2014 on the files of the Kerala Lok Ayukta, challenging the order of the Upa Lok Ayukta dated 22.03.2016 whereby the direction sought for by the petitioner to the respondents herein i.e. the officials of the Kerala State Electricity Board Ltd. to pay the eligible retiral benefits due to the petitioner was declined and the complaint was dismissed awarding a cost of Rs. 10,000/- to be paid by the complainant to the respondents. 2. Basic material facts for the disposal of the writ petition are as follows:- 3. The petitioner was appointed as First Grade Overseer in the Kerala State Electricity Board on 10.02.1972. He was promoted as Assistant Engineer on 03.05.1979 and he joined duty in that post in 110 KV Sub Station, Nallalam on 04.05.1979. While working as Assistant Engineer in Generation Division, Moozhiyar, after completing 13 years of service in the KSEB, the petitioner availed W. P. (C) No. 17482 of 2016 -4- leave without allowance for going abroad for one year from 08.02.1985 which was sanctioned by Board Order No. EsttI-3521/85 dated 19.10.1985. Sanction was also accorded to the petitioner to accept employment in M/s. Al Nazha at Ruwi in the Sultanate of Oman. Thereafter extension of leave for 5 years more from 08.02.1986 was applied for and it was sanctioned by the Board after a lapse of 22 months from the date of application as per Board Order No. Estt/1/14291/416/86 dated 17.12.1987. 4. According to the petitioner, he wanted to rejoin duty after the expiry of the sanctioned leave. But due to the crisis consequent to the Kuwait invasion by Iraq, he could not rejoin the KSEB as desired. Therefore, he was compelled to apply for extension of leave for 5 years more by sending a letter dated 07.01.1991 to the Chief Engineer. The said letter and the leave application were rooted through the Executive Engineer, Generation Division, Moozhiyar. Since no communication was received from the authorities rejecting the request, petitioner was under the impression that leave might have been sanctioned. Thereafter he applied for extension of leave for 4 years from 08.02.1996. After the expiry of the leave applied for, he again W. P. (C) No. 17482 of 2016 -5- sent an application for leave without allowance from 08.02.2000 to 25.09.2000. Till 25.09.2000 there was no communication received by the petitioner rejecting his application for extension of leave. 5. The petitioner reported for duty on 26.09.2000 before the Deputy Chief Engineer, Generation Circle, Moozhiyar, from where he was relieved of his duties earlier. It is also the contention of the petitioner that on joining duty he came to understand that his application for extension of leave from 08.02.1991 onwards submitted through the Executive Engineer, Generation Circle, Moozhiyar was not forwarded to the Office of the Chief Engineer for sanction. It was further understood that applications were missing in the office of the Deputy Chief Engineer. Therefore, he submitted a fresh application for leave without allowance for the period from 08.02.1991 to 25.09.2000 to the Deputy Chief Engineer for onward submission to the Chief Engineer. The applications were duly recommended by the Deputy Chief Engineer and forwarded it to the Chief Engineer along with his covering letter No. EB1/L/2000-01/683 dated 27.09.2000 for sanctioning leave. Thereafter the petitioner was permitted to retire from service on 30.09.2000 as per Memo No. EB/ERD/Pen/2000- W. P. (C) No. 17482 of 2016 -6- 01/118 dated 30.09.2000. Though representations were repeatedly made before the KSEB, leave was not sanctioned and retirement benefits were not given to the petitioner. It was in the backdrop that the reliefs were sought for in the complaint. 6. After assimilating the factual and legal situations, the Upa Lok Ayukta has arrived at the following conclusions:- “9. It is the admitted position that the complainant was sanctioned Leave Without Allowance for seeking employment abroad only for six years which expired on February 7, 1991. Though the complainant has alleged that he had applied for extension of leave in 1991 and 1996, those applications had never reached the competent authority. Complainant also concedes this fact. Therefore, the contention of the respondents that the complainant had absented from duty unauthorisedly has to be accepted. Moreover, complainant could not have abstained from duty if leave was not actually sanctioned to him. In other words he could not have kept away from duty in anticipation that he would be granted leave by the competent authority merely for the asking. Sanctioning of leave to an employee is purely at the discretion of the employer as is clear from Rule 65 Part (1) of Kerala Service Rules. Therefore the continued absence of the complainant from duty from February, 1991 onwards is nothing but dereliction of duty and it amounts to desertion from service. The contention of the complainant that he had shot off letters and W. P. (C) No. 17482 of 2016 -7- applications for extension of leave to his employer from abroad is nothing but insubordination and gross violation of conditions of service to say the least. Curiously complainant has had the audacity to submit "fresh applications for Leave Without Allowance” in September 2000 after he came back from his "sojourn" abroad, I do not propose to make any further comment on the audacity of the complainant to expect the authorities to sanction him leave as of right. The provisions contained in Appendix XII A Part I KSR need not be reemphasized. 10. There is yet another aspect of the matter. Complainant retired from service on superannuation on September 30, 2000. This complaint has been filed on September 4, 2014 nearly after 14 years of his superannuation. In this complaint it has been stated that he had waited for 11 years before submitting a formal application seeking pensionary benefits though according to him he had approached some authorities on several occasions prior to that. According to him, he was hoping that the competent authority will take some action in his favour. There is no tangible explanation at all for the inordinate delay, even assuming he might have obtained any relief if he had approached this Forum within reasonable time. I have referred to this aspect only to highlight the fact that this complaint is nothing but sheer abuse of process, since prima facie I am satisfied that the complainant has not approached this Forum with clean hands. 11. Ext. P4 is stated to be a memo issued by the Executive Engineer attached to the Erection Division, Seethathodu stating that the complainant was relieved of his duty W. P. (C) No. 17482 of 2016 -8- in KSEB with effect from the afternoon on September 30, 2000 "due to retirement on superannuation". The signature of the Executive Engineer in Ext. P4 memo is identical to the signature of the Deputy Chief Engineer, Generation Circle, KSEB, Moozhiyar seen Ext. P3(b). Ext. P3(c) and Ext.P3(d). These three documents are stated to be true copies of the applications for Leave Without Allowance submitted by the complainant on January 17, 1991, January 10, 1996 and January 2, 2000, Deputy Chief Engineer, Generation Circle, Moozhiyar has allegedly countersigned these applications after writing the word "recommended". As I have mentioned earlier, the signature of the Deputy Chief Engineer in the three documents [Ext.P3(b), (c) and (d)] is exactly identical to the signature of the Executive Engineer that is found in Ext.P4. If this is coincidental, it is undoubtedly stranger than friction. What is more baffling is that how a Senior Officer like Deputy Chief Engineer worth his salt could have recommended sanctioning of Leave Without Allowance on those post dated applications. Anyway, do not propose to make any further observations on the above aspect at this stage. Anyhow, in my view the complainant cannot be spared for abuse of process of this Forum. Therefore, complaint is dismissed with a cost of Rs. 10,000/- to be paid by the complainant to the respondents. The cost shall be paid within one month from the date of receipt of a copy of this order. It will be open to the respondents to recover the cost from the complainant in accordance with law, if it is not paid within the time W. P. (C) No. 17482 of 2016 -9- stipulated.” 7. It is thus challenging the legality and correctness of the order of the Upa Lok Ayukta, the writ petition is filed. 8. The paramount contention advanced in the writ petition is that the Upa Lok Ayukta has failed to note that the petitioner submitted his application on time, however it was not forwarded to the Chief Engineer from the office of the Deputy Chief Engineer. Ext. P3(a) produced in the complaint was submitted before the Deputy Chief Engineer and he readily recommended the leave application and also sent a letter produced as Ext. P2 in the complaint recommending for granting retirement benefits. Therefore according to the petitioner the said aspect is indicative of the fact that the petitioner has not suppressed any facts and he approached the Lok Ayukta with clean hands and his application was recommended for consideration by the Deputy Chief Engineer as per Ext. P2 produced along with Ext. P1 complaint. 9. Therefore the sum and substance of the contention is that the said being the position, the approach made by the Upa Lok Ayukta by W. P. (C) No. 17482 of 2016 -10- dismissing the complaint on the ground that the petitioner has not approached the Lok Ayukta with clean hands is not correct and hence liable to be set aside. 10. It is also submitted that the leave applied for was sanctioned by the KSEB Ltd., after some delay, up to 07.02.1991. The submission is that when extension of leave was applied for in 1986 that was sanctioned after 22 months from the date of application. Various other contentions are also raised by the petitioner to canvass the position that since the petitioner had 13 years of service, petitioner is entitled to get pension, and further that there can be no limitation to seek the reliefs of the pension and pensionary benefits before a competent forum. 11. That apart it is contended that the Upa Lok Ayukta is not justified in awarding cost of Rs. 10,000/- since the factual circumstances put forth by the petitioner shows that he was not able to file the complaint on an earlier occasion. That apart it is pointed out that since no departmental action was initiated against the petitioner and since the petitioner was not discharged from service, the findings rendered by the Lok Ayukta that the petitioner is not entitled to get the pensionary benefits consequent to the non-grant of leave sought for by W. P. (C) No. 17482 of 2016 -11- the petitioner cannot be sustained under law. 12. We have heard learned counsel for the petitioner Sri. S. Ramesh and learned Standing Counsel for the Kerala State Electricity Board Ltd. Sri. Anil K. S. and perused the pleadings and material on record. 13. The primary question to be considered is whether there is any limitation for approaching a competent forum seeking direction for release of pension. 14. The said question was considered by the Hon'ble Apex Court in **M. R. Gupta v. Union of India and Others [(1995) 5 SCC 628]** , a case where the aggrieved petitioner approached the High Court in regard to fixation of pay after a period of 11 years and the Hon'ble Apex Court held as follows:- “5. …......The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation W. P. (C) No. 17482 of 2016 -12- made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation, the application cannot be treated as time barred since it is based on a recurring cause of action.” ## 15. In **Shiv Dass v. Union of India [(2007) 9 SCC 274]** the question considered was in respect of delay in filing writ petition seeking direction for release of the pension and the Hon'ble Apex Court held as follows:- “8. ….......The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to W. P. (C) No. 17482 of 2016 -13- cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.” 16. The question with respect to the delay in approaching the competent authority was considered by a learned Single Judge of this Court in W. P. (C) No. 1214 of 2020 in S. Surendran v. the Director General of Central Industrial Security Force and Another, and has rendered a judgment dated 11.02.2022 wherein this question was considered and held that the objection on the ground of delay cannot be sustained in view of the earlier judgment rendered by this Court in W. P. (C) No. 21751 of 2019 dated 19.08.2019 which was a case where a writ petition was submitted before the court after 35 years of dismissal of the petitioner therein and this Court directed to consider the request of the petitioner for compassionate allowance, in accordance with law, irrespective of the delay in approaching the Court W. P. (C) No. 17482 of 2016 -14- for securing the reliefs. 17. Therefore it can be seen that the law is trite and settled that there can be no limitation in the matter of a service benefit since it is a continuing cause of action. Moreover in this case, even though the application submitted by the petitioner for grant of leave was not sanctioned after 1991, no departmental action was initiated against the petitioner by the KSEB Ltd for the alleged unauthorised absence, enabling the board to withhold the pensionary benefits due to the petitioner. 18. In that view of the matter, we are of the considered opinion that interference is required to the impugned order of the Upa Lok Ayukta so far as the entitlement of the petitioner for retiral benefits for the completed year of service, in accordance with law. Therefore we set aside the order of the Upa Lok Ayukta in complaint No. 1185 of 2014 dated 22.03.2016 and direct the respondents to consider the claim of the petitioner for pensionary benefits on the basis of the undisputed service completed by the petitioner with the board, in accordance with law, at the earliest and at W. P. (C) No. 17482 of 2016 -15- any rate within three months from the date of receipt of a copy of this judgment. Writ petition is allowed to the above extent. Sd/- **S. MANIKUMAR CHIEF JUSTICE** Sd/- **SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE W. P. (C) No. 17482 of 2016 -16- ## **APPENDIX OF WP(C) 17482/2016** ## **PETITIONER EXHIBITS** - **EXHIBIT P1** - **TRUE COPY OF THE COMPLAINANT NO** **1185/2014 FILED BY THE BY THE PETITIONER BEFORE THE KERALA LOK AYUKTA ALONG WITH EXHIBITS P1 TO P4 PRODUCED HEREIN** - **EXHIBIT P2** - **TRUE COPY OF THE COUNTER STATEMENT DATED 6-1-2015 FILED BY THE KSE BOARD BEFORE THE LOK AYUKTA** - **EXHIBIT P3 TRUE COPY OF THE REPLY FILED BY THE PETITIONER TO EXT.P2 COUNTER STATEMENT BEFORE THE LOK AYUKTA** - **EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 185-2012 ISSUED BY THE DY. CHIEF ENGINEER,GENERATION CIRCLE, MOOZHIYAR TO THE DY. CHIEF ENGINEER, TRANSMISSION CIRCLE, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM** - **EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED 28TH AUGUST, 2013 SENT BY THE PETITIONER'S WIFE UNDER THE RTI ACT** - **EXHIBIT P5(A) TRUE COPY OF THE REPLY RECEIVED BY THE PETITIONER'S WIFE DATED 24-09-2013 TO EXT P5** **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 22-3-2016 IN COMPLAINT NO. 1185/2014 OF THE KERALA LOK AYUKTA**