WA No. 1004 of 2021 (against the judgment dated 22.09.2020 in W.P.(C) No.25459/2015)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 16[TH] DAY OF NOVEMBER 2021 / 25TH KARTHIKA, 1943** ## **WA NO. 1004 OF 2021** **AGAINST THE JUDGMENT IN WP(C) NO.25459/2015 DATED 22.09.2020 OF HIGH** ## **COURT OF KERALA** ## **APPELLANTS/RESPONDENTS NO.2 TO 4:** - **1 KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR KSRTC, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM-695023.** - **2 EXECUTIVE DIRECTOR(ADMINISTRATION), KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM-689602.** - **3 ASSISTANT TRANSPORT OFFICER, KSRTC, CHENGANNOR DEPOT, ALAPPUZHA-689621.** - **BY ADV. DEEPU THANKAN** ## **RESPONDENTS/PETITIONER & RESPONDENT NO.1:** - **1 SALIMMA JOSEPH THURUTHIPALLIL HOUSE, PUTHUSSERY SOUTH P.O, THIRUVALLA, PATHANAMTHITTA-689602.** - **2 REPRESENTED BY ITS SECRETARY TO GOVERNMENT, TRANSPORT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **BY ADV. NAVEEN T.** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR. GOVT. PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A. No.1004 of 2021 2 # **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** **-------------------------------------------------------------** ## W.A. No.1004 of 2021 _[against the impugned judgment dated 22.09.2020 in W.P.(C) No.25459/2015]_ **------------------------------------------------------** Dated this the 16[th] day of November, 2021 ## **JUDGMENT** ## **Alexander Thomas , J.** The 1[st] respondent herein has filed the instant writ petition (civil), W.P.(C) No.25459/2015, with the following prayers:- - _i) Issue a writ of certiorari or any other appropriate writ order or direction calling for the records leading to Exhibit P2, Exhibit P3 to the extent it has treated the period from 25-11-1993 to 11-1-1997 as unauthorised absence and LWA alone rather than LWA on medical grounds._ - _ii) Issue a writ of certiorari or any other appropriate writ order or direction calling for the records leading to Exhibit P8 and set aside the same._ - _iii) Issue a writ of mandamus or any other appropriate writ order or direction directing respondents to reckon the period from 25-111993 to 11-1-1997 as qualifying service for the purpose of pension to the husband of the petitioner._ - _iv) Issue a writ of mandamus or any other appropriate writ order or direction declaring that the respondents are bound to reckon the period from 25-11-1993 to 11-1-1997 as qualifying service for the purpose of pension to the husband of the petitioner._ - _v) Issue a writ of mandamus or any other appropriate writ order or direction directing the respondents to disburse arrears of pension due to her husband from the date of his retirement to his death and also arrears of family pension from the date of her husband’s death to till date after reckoning the period from 25-11-1993 to 11-1-1997 as qualifying service for the purpose of pension._ - _vi) Issue a writ of mandamus or any other appropriate writ order or direction directing the respondents to grand family pension in future after reckoning the period from 25-11-1993 to 11-1-1997 as qualifying service for the purpose of pension._ - _vii) Issue a writ of mandamus or any other appropriate writ order or direction declaring that the total qualifying service of the husband of the petitioner is 27 years._ - _viii) Grant such other reliefs which are just and necessary in the interest of justice.”_ W.A. No.1004 of 2021 3 2. The learned Single Judge after hearing both sides, has rendered the impugned judgment dated 22.09.2020 in the instant W.P.(C) No.25459/2015, wherein it has been found that the impugned action of the respondent Corporation therein to add a further condition in Ext.P3 to the extent of ordering that the leave without allowance (LWA) granted thereby shall not count for pensionary benefits, is illegal and ultravires to the limited extent the said LWA period is not reckoned for pensionary benefits, etc., and that therefore the said LWA period from 25.11.1993 to 11.01.1997 should also be reckoned along with his other regular approved service for reckoning his pension, DCRG, etc., and also that arrears of revised pensionary benefits should be duly disbursed to the writ petitioner, who is the widow of the deceased pensioner, within 2 months, etc. 3. Aggrieved by the said impugned judgment rendered by the learned Single Judge in the above W.P.(C), the respondents therein [Kerala State Road Transport Corporation, its Executive Director (Administration) and the Assistant Transport Officer concerned], have preferred the instant intra-court appeal under Sec.5(i) of the Kerala High Court Act. 4. Heard Sri.Deepu Thankan, learned counsel appearing for the appellants in the W.A./respondents 2 to 4 in the W.P.(C), W.A. No.1004 of 2021 4 Sri.T.Naveen, learned counsel appearing for R1 in the W.A./writ petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for R2 (State of Kerala) in the W.A./R1 in the W.P.(C). 5. The deceased husband of the writ petitioner was an employee of the 2[nd] respondent Kerala State Road Transport Corporation (KSRTC) from 15.11.1977 onwards and he had retired from service while holding the post of Conductor on 30.09.2004. Further, the case of the writ petitioner is that while the said employee was in service, he had availed Leave Without Allowances (LWA) on medical grounds as envisaged in Rule 88 of Part I Kerala Service Rules (KSR) for the period from 25.11.1993 to 11.01.1997, due to serious cardiac ailments. 6. The said period in question was not regularised while the employee was in service, as the LWA was not sanctioned. After his retirement from service on 30.09.2004, the Unit Officer concerned of the Corporation had passed an order (referred to in Ext.P3) directing that the abovesaid period from 25.11.1993 to 11.01.1997 will stand regularised as LWA. Consequently, the Executive Director of the KSRTC has passed Ext.P3 proceedings dated 25.01.2005 ordering that the abovesaid W.A. No.1004 of 2021 5 action of the Unit Officer in regularising the abovesaid period from 25.11.1993 to 11.01.1997 as LWA will stand ratified. Further a detrimental condition is imposed therein holding that the abovesaid period shall not count for pensionary benefits, etc. On the basis of the decision referred to in Ext.P3, the pensionary benefits of the employee was computed and the abovesaid period from 25.11.1993 to 11.01.1997 was excluded while reckoning the pensionable service of the employee. In other words the pension and DCRG were computed by excluding the abovesaid period, etc. Thereafter the employee had objected to the detrimental condition in Ext.P3 by submitting Ext.P4 representation dated 02.05.2005 and Ext.P5 representation dated 23.01.2007 before the authority who passed Ext.P3 as well as the Pension Adalath, respectively. 7. Ext.P6 is the communication issued by the Corporation, which would show that no disciplinary action was ever initiated or contemplated for the abovesaid period in question covered by Ext.P3. 8. The employee had died on 19.01.2014. Thereafter, it appears that the writ petitioner, who is the widow of the deceased employee has been granted family pension, on the very same computation basis, i.e., by excluding the abovesaid period covered by Ext.P3 from the pensionable service. W.A. No.1004 of 2021 6 9. The writ petitioner has filed the instant writ petition on 27.07.2015. The petitioner has mainly placed reliance on Ext.P7 Office Memorandum dated 27.12.2014, issued by none other than the competent authority of the KSRTC, wherein it has been stated that since the provision of Rule 26 of Part III KSR was amended by the State Government and the same was adopted by the KSRTC with effect from 10.06.2010, the LWA sanctioned on medical grounds without Medical Certificate in terms of Rule 88 of Part I KSR, prior to 10.06.2010 shall count for pension, keeping in view the unamended provisions of the said Rule 26 and that in case of such LWA on medical grounds without Medical Certificate is sanctioned after the said cut off date of 10.06.2010, then the same shall not count for pension. This appears to be on the basis of the amendment carried out to Rule 26 of Part III KSR, by the State Government with effect from 05.11.2009, which was adopted by the KSRTC with effect from 10.06.2010. The petitioner has also placed reliance on Ext.P10 judgment dated 01.07.2013 rendered by a learned Single Judge of this Court in W.P.(C) No.3663/2013, wherein it has been held that in view of the amended provisions of Rule 26 of Part III KSR, which has been made applicable to KSRTC with effect from 10.06.2010, such LWA sanctioned prior to the cut off date on medical grounds without W.A. No.1004 of 2021 7 Medical Certificate, shall count for pension and such LWA, sanctioned after the cut off date without Medical Certificate shall not count for pension. It is on the basis of Ext.P10 judgment that the previous circular of the KSRTC at Ext.P9 was modified which led to the issuance of Ext.P7 Office Memorandum/Circular dated 27.12.2014. The petitioner has thus, contended that since the LWA period in question covered by Ext.P3 as well as the date of sanction of the said LWA without Medical Certificate as per Ext.P3 is before the said cut off date of 10.06.2010, the condition in Ext.P3 that the said LWA period so sanctioned shall not count for pension is ultravires the statutory provisions and is against the dictum laid down by this Court in Ext.P10 judgment and also will be in violation of the norms and guidelines being followed by the KSRTC as per Ext.P7 dated 27.12.2014, etc. 10. The learned Single Judge after hearing both sides, has granted the reliefs as afore mentioned. The main objections raised by the appellant KSRTC are to the effect that the deceased employee was quite irregular in his duties and he was absent from duty unauthorisedly, and also that he has never made an application in writing for grant of LWA on medical grounds either with Medical Certificate or without Medical Certificate at any point of time, either W.A. No.1004 of 2021 8 prior to his retirement or after his retirement. That, it is only for the purpose of sanctioning his pensionary benefits that the KSRTC authority has liberally taken a stand in Ext.P3 that the said LWA period will stand regularised as LWA but shall not count for pension. 11. Further that, the benefit of the dictum laid down by this Court in Ext.P10 judgment or the benefit of Ext.P7 circular can be claimed only by employees, who had at least submitted application for LWA without Medical Certificate and who are diligently prosecuting it at the right time, and not in a case like the instant one which would virtually amount to a clear case of unauthorised absence. Further, the appellant KSRTC would contend purportedly on the basis of Ext.P7 Circular dated 27.12.2014, that the benefit of Ext.P7 cannot be given to employees who had retired prior to the cut off date of 10.06.2010. Further, very crucially it is argued by Sri.Deepu Thankan, learned Standing Counsel for the KSRTC appearing for the appellants that in a case where the employee has not acted with due responsibility and diligence and has remained absent on the purported ground of illness and has not even given an application in writing for sanction of LWA on medical grounds with or without Medical Certificate then discretionary relief should be denied by the writ Court. It is also argued that the writ petition has W.A. No.1004 of 2021 9 been instituted with inordinate delay and laches in as much as the deceased employee has died on 30.09.2004 and the detrimental condition in Ext.P3 has been issued on 25.01.2005 and the writ petition has been filed as late as on 27.07.2015, etc. 12. We have heard the parties _in-extenso_ and have given anxious consideration to the rival pleas. 13. It is common ground that the statutory provisions of the KSR have been adopted to regulate the service conditions of employees of the KSRTC, more particularly Part-III, which regulates the grant of pension. Rule 26 of Part III KSR as it stood prior to the amendment made effective as per SRO No.918/2009 with effect from 05.11.2009 provided as follows:- _“Rule 26. Time passed on leave of all kinds with or without allowances will count as qualifying service unless otherwise specified.”_ 14. Rule 26 has been amended as per SRO No.918/2009 w.e.f. 05.11.2009 and after such amendment Rule 26 reads as follows:- _“Rule 26. (a) Time passed on leave of all kinds with allowances shall count as qualifying service._ _(b) Time passed on leave of all kinds without allowances shall not count as qualifying service, except the period of Leave Without Allowances availed of under Rule 88, Part I, Kerala Service Rules, on medical certificate, Leave Without Allowances availed of under Rule 91 A, Part I, Kerala Service Rules for study purposes subject to the condition laid down in proviso to Rule 33(b)(2), Part I, Kerala Service Rules and Leave Without Allowances upto 60 days taken under the_ W.A. No.1004 of 2021 10 _proviso to Rule 102, Part I, Kerala Service Rules in continuation of maternity leave.”_ 15. The above provision was adopted by the KSRTC w.e.f. 10.06.2010. Hence, in the case of KSRTC prior to 10.06.2010, the Rule position was as per the unamended provisions of Rule 26 and on and with effect from 10.06.2010, the regulatory provision is the one as per the amended provision of Rule 26 as above. 16. A Division Bench of this Court in the decision in _**Elizabath** v._ _**Director of Health Services**_ **[1998 KHC 596 = 1998 (2) KLT (SN) 82]** , has _interalia_ dealt with the application of unamended provision of Rule 26 of Part III KSR in para No.7 thereof and has held therein that Rule 26 stipulates for counting the time passed on leave of all kinds with or without allowances as qualifying service for pension, unless otherwise specified and it does not empower the Government to impose a condition while granting the Leave Without Allowances, that the period of such leave, will not count for any service benefits including pension and that even assuming that Rule 26 empowers the Government to do so, the grounds on which the period will be treated as non-qualifying, will have to be laid down by general or special order issued from time to time and that in the said case, no such order has been issued by the W.A. No.1004 of 2021 11 Government, etc. Further, by placing reliance on Rule 65 of Part I KSR, the Division Bench has held therein that while it is open to the leave sanctioning authority to refuse or revoke the leave due and applied for, it is not open to the said authority to alter the nature of such leave. Therein it has also been held by their Lordships of the Division Bench that the impugned order therein issued by the Government had the effect of altering the nature of the leave sought for by the incumbent concerned. Further, more crucially, it has to be borne in mind that even if the unamended provisions of Rule 26 have the effect of empowering the Government to make a contraspecification that, LWA will not count as qualifying service for pension, the same should have been done only with prior notice to the applicant, which has been not done in the instant case. It will be profitable to refer to the decision of the Division Bench of this Court in _**Elizabath's**_ case _(supra),_ para No.7, which reads as follows:- - _"_ _**7** . In this case, the leave application was made under Ext. P1 on 16th February 1991 wherein the appellant requested the Director of Health Services to permit her to proceed on leave without allowances from 16[th] February 1991. She made a further representation to the Commissioner and Secretary to Government, Health Department through the District Medical Officer, Idukki which is a notice under R.56 Part III of the Kerala Service Rules requesting sanction for her retirement with effect from 30th June 1992. By Ext. P-3 the Government permitted the appellant to retire voluntarily with effect from 30th June 1992 pending settlement of liabilities, if any outstanding against her. It is after that the Government by Ext._ W.A. No.1004 of 2021 12 _P-4 order dated 16th July 1993 sanctioned the leave without allowances applied for by the appellant subject to the condition that the period of leave will not count for any service benefits including pension. We have carefully considered the submissions made by the respective parties. R.64, 65, 77 (ix) and 88 of Part I and R.26 of Part III of the Kerala Service Rules are the provisions relevant for the purpose of deciding the question involved in this case. Those provisions are extracted hereunder._ _"64. The Government may issue orders specifying the authority by whom leave, other than study leave and leave without allowances exceeding a period of four months at a time, may be granted. The power to sanction leave without allowances exceeding a period of four months at a time will rest with Government._ _65. Leave cannot be claimed as a matter of right. When the exigencies of the public service so require, discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it. Note. The nature of the leave due and applied for by an officer cannot be altered at the option of the sanctioning authority and while it is open to the sanctioning authority to refuse or revoke the leave due and applied for, it is not open to him to alter the nature of such leave._ * * * * ** ## 77. In these rules: * * * * ** _(ix) 'Completed years of service' and 'one year's continuous service' mean continuous service of the specified duration under the Government of Kerala and include periods spent on duty as well as on leave including leave without allowances._ * * * * ** _88. Leave without allowances. (i) Leave without allowances may be granted to any officer in special circumstances_ _(a) when no other leave is by rule admissible,_ W.A. No.1004 of 2021 13 _(b) when other leave is admissible by the concerned applies in writing for the grant of leave without allowances._ _(ii) Except in the case of an officer in permanent employ, the duration of leave without allowances shall not exceed 3 months on any one occasion."_ * * * * ** ## _Part III_ _26. Time passed on leave of all kinds with or without allowances will count as qualifying service unless otherwise specified. The authority competent to declare a spell of leave as non qualifying for pension will be the Government and the grounds on which the periods of leave will be treated as non qualifying, will be laid down by general or special orders issued from time to time. This decision takes effect from 27th June 1974. [G. O. (P) 32/77 / Fin., dated 22nd January 1977.]"_ _We are unable to share the views of the learned Single Judge on R.26 Part III of the Kerala Service Rules. R.26 stipulates for counting the time passed on leave of all kinds with or without allowances as qualifying service unless otherwise specified, and it does not empower the Government to impose a condition while granting the leave without allowances that the period of such leave will not count for any service benefits including pension. Even assuming that R.26 empowers the Government to do so, the grounds on which the period will be treated as non qualifying will have to be laid down by general or special order issued from time to time. In this case no such order has been issued by the Government. As per the note to R.65 while it is open to the sanctioning authority to refuse or revoke the leave due and applied for, it is not open to him to alter the nature of such leave. In this case the Government has not refused or revoked the leave without allowances applied for by the Government, but, in effect, has altered the nature of the leave applied for by the appellant as one under Appendix XII - A of the Kerala Service Rules, viz. leave without allowances for employment elsewhere, which will not count for any service benefits including pension. It is not the case of the Government that the appellant has taken up any employment elsewhere. The appellant had applied for leave without allowances on medical grounds."_ W.A. No.1004 of 2021 14 17. Even if we do not apply the dictum laid down by the Division Bench of this Court in _**Elizabath's**_ case _(supra),_ in its entirety, it is common ground that the detrimental condition in Ext.P3 that the LWA period shall not count for pension has been imposed by the competent authority of the KSRTC, behind the back of the affected person, the deceased employee and without affording reasonable opportunity of being heard to the said party. Hence, in any view of the matter, the said adverse condition imposed as per Ext.P3 to the effect that the LWA period so sanctioned, covered by Ext.P3, shall not count for pension, is to be only treated as illegal, ultravires and inoperative, solely on the ground of patent violation of principles of natural justice. 18. Going by the scheme of the unamended provision and amended provision of Rule 26 of Part III KSR, ordinarily, LWA period availed prior to the said amendment shall count for pension unless a contra specification is imposed therein. Whereas the amended provision made effective from the cut off date (10.06.2010 in the case of KSRTC and 05.11.2009 in the case of Government services), gives vide latitude to the leave sanctioning authority. In the instant case, the LWA period on medical grounds, without Medical Certificate, is for the period from 25.11.1993 to 11.01.1997, as can be W.A. No.1004 of 2021 15 seen from a mere reading of Ext.P3, which is the admitted document of the appellants. Hence, the abovesaid leave period was long prior to the amendment made effective from 10.06.2010 in the case of KSRTC. The applicability or otherwise of the amended provision will be with reference to the leave period in question. If the leave availed is before the cut off date, then the unamended provisions will govern the field and if the leave availed is after the cut off date, then the said leave sanctioned for such period would be regulated by the amended provision. 19. So, in the instant case, the unamended provision of Rule 26 of Part III KSR had governed the field. True that, going by the case of the KSRTC, the deceased employee has never submitted an application in writing for grant of LWA on medical grounds without Medical Certificate as envisaged in Rule 88 of Part I KSR. 20. The writ petitioner has got a case that her deceased husband had in fact, submitted Ext.R1(a) application for LWA, as early as on 14.11.1996, which was not acted upon by the respondents in the W.P.(C)/the appellants in the W.A., etc. To that, the Standing Counsel for the KSRTC would submit that the files disclose that no such application as per Ext.R1(a) is seen in the file and that the said averment cannot be acted upon by this Court. W.A. No.1004 of 2021 16 21. However, it has to be borne in mind that the Rule which is applicable in the case of LWA on medical grounds with or without Medical Certificate is as per Rule 88 of Part I KSR. Rule 88 of Part I KSR reads as follows:- _“Rule 88._ _**Leave without allowances.--** (i) Leave without allowances may be granted to any officer in regular employment in special circumstances --_ _[Provided that the leave of person appointed under rule 9(a)(i) of the Kerala State and Subordinate Service Rules 1958 shall be regulated by rules under Appendix VIII of these rules, unless he is already an officer on regular employment.]_ _(a) when no other leave is by rule admissible, or_ _(b) when other leave is admissible, but the officer concerned applies in writing for the grant of leave without allowances._ _(ii) Except in the case of an officer in permanent employ, the duration of leave without allowances shall not exceed 3 months on any one occasion._ _(iii) When the period of absence of any Officer is without proper application for leave, Government may retrospectively convert the period of absence into leave without allowance even when any other kind of leave was admissible at the time of absence._ _Exception 1.- When a period of suspension is retrospectively treated as leave without allowances by the revising or appellate authority the limitation of admissible leave without allowances to three months to officers not in permanent employ will not apply._ _Exception 2.- The limitation in sub-rule (ii) shall not apply to the grant of leave without allowances regulated by the rules in Appendices XIIA, XIIB and XIIC.”_ 22. Clause (iii) of Rule 88 of Part I KSR would stipulate that when the period of absence of any officer is without proper application for leave, the Government may retrospectively convert the period of absence into leave without allowance even when any other kind of leave was admissible at the time of absence. Therefore, even in the absence of a formal application in writing, the competent authority concerned, which in the instant case is the competent W.A. No.1004 of 2021 17 authority of the KSRTC, can retrospectively convert the period of absence into leave without allowances, even when other kinds of leave were admissible at the time of absence. This exactly has been done by the issuance of Ext.P3 by the KSRTC by sanctioning LWA, for the abovesaid period in question. However, the detrimental condition that the same shall not qualify for pension has been added thereon, which is the limited subject matter of the challenge herein. 23. Therefore, we need not resolve the issue as to whether the deceased employee had, in fact, submitted Ext.R1(a) application for LWA on 14.11.1996 as urged by the writ petitioner or whether no such application was ever submitted by the deceased employee, at any point of time, as urged by the appellant Corporation. Thus, it is for the simple reason that the said issue is no longer relevant and the competent authority of the KSRTC has already exercised the discretion in terms of Rule 88 (iii) by passing an order in the nature of Ext.P3, whereby the action of the Unit Officer in sanctioning LWA for the said period has been ratified by the Executive Director of the KSRTC but an added condition by way of the abovesaid detrimental provision that the same shall not count for pension has been incorporated. W.A. No.1004 of 2021 18 24. So, the only issue is as to the legality and validity of the detrimental condition in Ext.P3 to the extent that the LWA period in question shall not count for pension. It is common ground that the adverse and detrimental condition in Ext.P3 that the LWA period shall not count for pension, has been ordered by the appellants without notice to the affected party (the employee in question) and without affording opportunity of being heard to him. The prime requirement is that such condition which inflicts very adverse civil consequences on the employee, especially on his pension, till his death and even on family pension, could have been done only in strict compliance with the elementary principles of natural justice and fairness. That has not been done in the instant case. So, we need not get into any larger issues regarding the applicability of the dictum laid down by the Division Bench of this Court in _**Elizabath’s**_ case ( _supra_ ) or as to the effect of the unamended provisions and amended provisions of Rule 26 of Part III KSR i.e., the provisions which are regulating the KSRTC on or after the cut off date of 10.06.2010. 25. All what we would say is that the view taken by the learned Single Judge in placing reliance on Ext.P10 judgment and in Ext.P7 circular cannot be said to be unreasonable or perverse. We would also hold that even without saying so, we can reach the same W.A. No.1004 of 2021 19 conclusion as the one rendered by the learned Single Judge, solely on the ground of patent violation of the principles of natural justice in the issuance of the adverse condition in Ext.P3, as above. 26. The last of the matter is the contention urged by the appellants that the benefit of Ext.P7 circular, cannot be claimed by the petitioner, inasmuch as the said benefit cannot be claimed by employees who have retired prior to the cut off date of 10.06.2010. From a reading of Ext.P7 circular dated 27.12.2014, we are not in a position to uphold the abovesaid contention of the appellants. From a reading of para No.5 of Ext.P10 judgment, it can be seen that Ext.P7 circular dated 27.12.2014 has been issued in compliance with the directions issued by this Court in Ext.P10 judgment rendered in a batch of connected writ petitions. Both in Ext.P10 judgment as well as in Ext.P7 circular it is stated that in respect of LWA without medical certificate granted prior to the cut off date of 10.06.2010, the same shall count for pension, and in the case of LWA without medical certificate granted after the cut off date of 10.06.2010, then it will not qualify for pension, etc. Therefore, Ext.P7 cannot support the abovesaid argument made by the appellants. 27. In this case, the LWA period on medical grounds without Medical Certificate covered by Ext.P3 was for the period from W.A. No.1004 of 2021 20 25.11.1993 to 12.11.1997, which is long prior to the amendment of Rule 26 of Part III KSR, which in the case of Government services has been made effective from 05.11.2009 and in the case of KSRTC, has been made applicable from 10.06.2010. The said leave was sanctioned as per Ext.P3 on 25.01.2005, which is also before the said amendment to the Rules. 28. Yet another argument has also been advanced by the appellants that the case of the deceased employee should be treated as one of unauthorised absence and therefore it is not right and proper to count the said period for pension. The last contention urged by Sri.Deepu Thankan, learned Standing Counsel for the KSRTC appearing for the appellants is that there has been inordinate delay and laches in the institution of the above writ petition, which has been filed only as late as on 27.07.2015. To this, Sri.T.Naveen, learned counsel appearing for the writ petitioner would point out that after retirement of the employee from service on 30.09.2004, he was served with Ext.P3 dated 25.01.2005. That, thereafter, the employee has repeatedly objected to the adverse condition as can be seen from Ext.P4 representation dated 02.05.2005, submitted before the KSRTC and Ext.P5 representation dated 23.01.2007, submitted before the Pension Adalath. Ext.P6 would also show that disciplinary W.A. No.1004 of 2021 21 action was never initiated or contemplated at any point of time alleging unauthorised absence of the abovesaid period, etc. 29. After hearing both sides, we are of the view that it is indisputable that at no point of time the KSRTC has issued any memo or show cause notice alleging unauthorised absence and for initiating action for such unauthorised absence. On the other hand, no such action was ever taken and ultimately after the retirement of the petitioner the LWA period has been regularised by Ext.P3. Therefore, we are not prepared to countenance the said argument by projecting a case of unauthorised absence. 30. However, the fact of the matter is that the deceased employee has been receiving pension by excluding the abovesaid LWA period after the issuance of Ext.P3 dated 25.01.2005 and after his death on 19.01.2014, the writ petitioner, being his widow has been receiving family pension on such computation basis. This writ petition has been filed only on 27.07.2015. 31. In the above circumstances, it is to be borne in mind that the issue is mainly in relation to claim for revision of pensionary benefits, by adding the excluded LWA period covered by Ext.P3. Revision of pensionary benefits is a recurring cause of action. However, merely because the cause of action is recurring, is no W.A. No.1004 of 2021 22 ground to say that the affected party can wait for any length of time and then institute appropriate legal proceedings. Taking note of the fact that the grievance of the petitioner is in relation to a recurring cause of action and also taking into account the fact that the writ petition has been belatedly filed only on 27.07.2015 and also for ensuring that the rights and interests of both sides are duly taken into account and modulated, it is ordered in the interest of justice that the arrears of revised pensionary benefits shall be actually payable to the writ petitioner only for the period of 3 years prior to the institution of the instant writ petition, which has been filed only on 27.07.2015. In other words, the arrears of the revised pensionary benefits shall be payable only for the period frojkfor a period anterior to that. 32. Consequently, we uphold the decision of the learned Single Judge in interfering with the adverse condition in Ext.P3 in the matter of exclusion of the LWA period. It is also ordered that the abovesaid eligibility period from 25.11.1993 to 11.01.1997 shall be reckoned by the KSRTC for the purpose of the pensionable service of the deceased employee. The pensionary benefits by way of pension and DCRG should be revised accordingly. However, the arrears of DCRG and pension, payable to the deceased employee need be paid only for the period from 27.07.2012 upto 19.01.2014 (the date of W.A. No.1004 of 2021 23 death of the employee). The arrears of the revised family pension shall be paid to the writ petitioner, who is the widow of the deceased employee for the period from 20.01.2014 onwards. Arrears of such revised benefits as above, shall be computed, reckoned and granted to the writ petitioner/R1 in the writ appeal without much delay, preferably within a time limit of 3 months from the date of receipt of a certified copy of this judgment. The directions and orders of the learned Single Judge as per the impugned judgment rendered on 22.09.2020 in the instant W.P.(C) No.25459/2015 will stand modified and substituted as above. With these observations and directions, the above writ appeal will stand finally disposed of. ## Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **VIJU ABRAHAM, JUDGE** Skk//13122021