IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
WP(C) NO. 19253 OF 2021
PETITIONER:
ANIL KUMAR R,
STORE ISSUER, GRADE II, KSRTC DEPOT, VAIKOM, KOTTAYAM
DISTRICT-686141.
BY ADVS.
T.R.JAGADEESH
B.RATHEESH
V.A.VINOD
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
TRANSPORT (A) DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 KERALA STATE ROAD TRANSPORT CORPORATION
REPRESENTED BY THE CHAIRMAN AND MANAGING DIRECTOR,
KSRTC, TRASNPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM-
695023.
3 EXECUTIVE DIRECTOR(ADMINISTRATION)
KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT
BHAVAN, EAST FORT, THIRUVANANTHAPURAM-695023.
4 DISTRICT TRASNPORT OFFICER
KERALA STATE ROAD TRANSPORT CORPORATION, ERNAKULAM
DEPOT, ERNAKULAM-682012.
5 DISTRICT TRANSPOR OFFICER
KERALA STATE ROAD TRANSPORT CORPORATION, KOTTAYAM
DISTRICT, KOTTAYAM-686001.
BY ADV SHRI.DEEPU THANKAN, SC, KSRTC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 19253 OF 2021
2
JUDGMENT
While the petitioner was working as a Conductor with the Kerala State Road Transport Corporation (KSRTC), he suffered certain medical conditions - he admits began much earlier - on account of which, according to him, he was unable to discharge his duties and that he, therefore, requested for being shifted to a post having lighter responsibility, through application dated 23.04.2018. He says that this application was not considered in time and that, therefore, he was forced to prefer applications for leave for the period from 25.04.2018 to 26.05.2018 (this application is not on record) and for further leave from 23.05.2018 through Ext.P14. He asserts that since his condition was deteriorating, he preferred Ext.P15 application again, seeking WP(C) NO. 19253 OF 2021 3 that he be shifted to a lighter duty, followed by another representation dated 22.06.2018 (copy of which is not on record). He says that, finally, on 01.06.2018, the KSRTC asked him to produce a Medical Certificate, to which he replied through Ext.P16, again seeking that he be shifted to a lighter duty; but that instead of considering this, they issued him a directive on 17.09.2018 to produce a Disability Certificate, which he acceded to, along with the Medical Certificate, namely Exts.P1 and P17 on 18.09.2018.
2. The petitioner says that, in spite of all these, in a mechanical fashion, the KSRTC issued a notice to terminate his services on 22.01.2019, which was challenged by filing W.P. (C)No.39150/2018, culminating in Ext.P2 judgment, whereby, his applications for shifting to a lighter duty were directed to be WP(C) NO. 19253 OF 2021 4 considered; but then Ext.P3 order being issued rejecting it. He says that, he therefore, preferred another application, along with a Disability Certificate, on 26.03.2019, followed by Exts.P4, P5 and P18 and then approached the State Commissioner for Persons with Disabilities. He submits that, since urgent directions were required, he approached this Court again, by filing W.P.(C)No.10524/2019, which led to a judgment directing the State Commissioner for Persons with Disabilities to pass an order, thus culminating in Ext.P7.
3. The petitioner says that even though the Government directed the KSRTC to implement Ext.P7 order of the State Commissioner for Persons with Disabilities, they issued Ext.P9, dated 20.08.2019, literally demoting him to a lower post of Store Issuer (Grade II) carrying a lower scale of pay, which constrained him to WP(C) NO. 19253 OF 2021 5 approach this Court for the third time through W.P.(C)No.25123/2019 and to obtain Ext.P10 interim order. He says that he was, thereafter, allowed to join duty on 11.10.2019, on the strength of Ext.P10 interim order and that this order was finally confirmed by this Court in Ext.P11 judgment, making it clear that granting of a lighter duty will not entail a change of pay or allowances.
4. The petitioner contends that, therefore, on account of all the afore factual circumstances, the period when he was not allowed to discharge duties - between 23.04.2018 and 11.10.2019 - ought to have been regularized, since he was attending the office of the KSRTC on every day; but that instead of doing so, they have now issued Ext.P13 regularizing the said period only as Leave Without Allowances. He says that, this is WP(C) NO. 19253 OF 2021 6 egregiously improper, particularly because, on account of these issues, his increments from the year 2018 have been held up and not paid.
5. I have heard Sri.Jyothish Chandran - learned counsel for the petitioner and Sri.Deepu Thankan - learned Standing Counsel for the KSRTC.
6. Sri.Deepu Thankan controverted the afore assertions and allegations of the petitioner very strongly, arguing that whatever be the excuses that the petitioner may make, he kept himself out of duty from 23.04.2018, after submitting an application for a lighter duty. He argued that, the KSRTC obviously had to go through the said application and take an apposite decision thereon, especially because it had not been supported by the necessary Certificate of Disability or Medical Certificate. He added that since the petitioner WP(C) NO. 19253 OF 2021 7 produced these certificates only much later, the KSRTC could consider it only thereafter, thus issuing Ext.P9, wherein, he was granted a lesser duty; which was, however, challenged by him because it was shown to make him eligible to a lesser salary. The learned counsel, then, conceded that Ext.P10 interim order was issued on 09.10.2019, based on which, the petitioner joined duty on 11.10.2019 and that this Court has declared affirmatively, through Ext.P11 final judgment, that his pay and allowances will be protected, without any change, consequent to the shifting to easier duty. The learned Standing Counsel predicated that, therefore, the Corporation had no other option, but to issue Ext.P13 treating the entire period between 23.04.2018 to 11.10.2019 as being Leave Without Allowances. He then submitted that this writ petition is not maintainable because it WP(C) NO. 19253 OF 2021 8 also challenges Ext.P9, which has now been finally decided by this Court through Ext.P11 judgment. He argued that, for the afore reasons, the contentions of the petitioner are only liable to be repelled and thus prayed that this writ petition be dismissed.
7. When I consider the afore submissions, with reference to the various materials on record, it is indubitable that there are several loose ends in the factual matrix, as presented by both sides.
8. The petitioner asserts that he was not well and that he was unable to do the duties of a Conductor, but that he was attending the office everyday, though not allowed to sign the register to indicate so. He asserts that he could not have worked as a Conductor because he was suffering from almost 50% blindness, which would have put even the KSRTC in trouble, had WP(C) NO. 19253 OF 2021 9 he made any mistake while doing so. According to him, it is thus that he made an application for change to a lighter duty on 23.04.2018, but that this is allowed by the Corporation, after taking their own time, through Ext.P9, which however, demoted him to a post with a lower scale of pay. He says that, he was, therefore, justified in not accepting it and challenging the same it before this Court, thus to first obtain Ext.P10 interim order, which protected his pay as an interim measure, based on which, he joined on 11.10.2019. He says that this stand was validated by this Court in Ext.P11 judgment, declaring that his salary could not have been reduced. He thus asserts, that there cannot be any detriment imposed upon him on account of the afore facts and that his actions were legitimate and deserving to a citizen of this Country.
WP(C) NO. 19253 OF 2021 10
9. In contrast, the stand of the KSRTC is that no employee can be allowed to make an application for lighter duty and then keep away from his employment. According to them, the application for a lighter duty was made by the petitioner on 23.04.2018, but he joined only on 11.10.2019, after obtaining Ext.P10 interim order from this Court. They contend that he ought to have accepted Ext.P9,subject to his challenge against it on 20.08.2019 - when it was issued to him, but that he choose not to join duty on its basis, but to still keep away for nearly two months, until Ext.P9 order had been issued. It is, therefore, their case that petitioner could not have been given anything further than what has been offered through Ext.P13.
10. However, it must be borne in mind that it is the specific case of the petitioner that, WP(C) NO. 19253 OF 2021 11 on account of his illness, he had preferred various leave applications after 23.04.2018. There is no whisper in any of the counter pleadings as to the fate of these applications and whether they were rejected or allowed finally. This is crucial because, had these applications been actually made, then the stand of the KSRTC on the same would have significance, because the periods covered by it cannot be automatically treated as Leave Without Allowance and may have to be accounted towards eligible medical leave.
11. Apart from the afore, the question whether petitioner had voluntarily kept away from service and if he was actually present at the office, but being unable to work as a Conductor, are issues in the factual realm, which certainly require a proper enquiry, before a decision, akin to Ext.P13, could have WP(C) NO. 19253 OF 2021 12 been taken to treat the entire period between 23.04.2018 and 11.10.2019 as unauthorised absence and thus being regularised only as Leave Without Allowance.
12. To add to the above, certainly, the petitioner was justified in being aggrieved by Ext.P9, which offered him a lower salary, solely because he had asked for lighter duty and which has been interdicted by this Court through Exts.P10 and P11 interim order and judgment respectively.
13. Therefore, the acme question is whether petitioner had voluntarily kept away from service, or he had been incapacitated from working; and whether he was justified in not accepting Ext.P9 for the reasons that I have already said above.
14. These issues certainly ought to have engaged the minds of the Competent Authority of WP(C) NO. 19253 OF 2021 13 the KSRTC, before Ext.P13 could have been issued.
15. In the afore circumstances, I am certain that this Court cannot accept Ext.P13, particularly because it is very vague, saying that the period from 23.04.2018 till the date on which the disciplinary action against the petitioner was dropped - without specifying the date therein - it is to be treated as Leave Without Allowance. On this ground also, said order has to fail.
Resultantly, I order this writ petition and set aside Ext.P13; with a consequential direction to the competent Authority of the KSRTC to hear the petitioner and consider his claim for full allowances during the period aforementioned, after affording him an opportunity of being heard; thus culminating in an appropriate order and necessary action WP(C) NO. 19253 OF 2021 14 thereon, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment.
Needless to say, while the afore exercise is completed, the observations of this Court as recorded above shall also be implicitly kept in mind, along with the various documents on record.
If, after the afore exercise, it is found that the petitioner is entitled to any benefit, then either simultaneously or immediately thereafter, his request for increments from the year 2018 shall also be considered and granted to him, subject to his eligibility.
Sd/-
DEVAN RAMACHANDRAN JUDGE rp/SAS WP(C) NO. 19253 OF 2021 15 APPENDIX OF WP(C) 19253/2021 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF DISABILITY CERTIFICATE DATED 18/09/2018.
Exhibit P2 TRUE COPY OF JUDGMENT DATED 28/01/2019 IN WPC NO.39150/2018.
Exhibit P3 TRUE COPY OF ORDER NO.PL1/001012/18 DATED 12.03.2019.
Exhibit P4 TRUE COPY OF DISABILITY CERTIFICATE DATED 26.03.2019 .
Exhibit P5 TRUE COPY OF REPRESENTATION DATED 26.03.2019 AND ENGLISH TRANSLATION.
Exhibit P6 TRUE COPY OF JUDGMENT DATED 17.04.2019 IN WPC NO.10524 OF 2019.
Exhibit P7 TRUE COPY OF ORDER NO.746/S2/19/SCPWD DATED 6.7.2019 AND ENGLISH TRANSLATION. Exhibit P8 TRUE COPY OF LETTER NO.TRANS-
A3/221/2019/TRANS DATED 8/8/2019 AND ENGLISH TRANSLATION.
Exhibit P9 TRUE COPY OF MEMORANDUM NO.PL1/003815/2019 DATED 20.08.2019.
Exhibit P10 TRUE COPY OF INTERIM ORDER DATED 9/10/2019 IN WPC 25123 OF 2019.
Exhibit P11 TRUE COPY OF JUDGMENT DATED 27/11/2019 IN WPC NO.25123/2019.
Exhibit P12 TRUE COPY OF LETTER DATED 15.1.2020 ISSUED BY WP(C) NO. 19253 OF 2021 16 COUNSEL FOR THE PETITIONER.
Exhibit P13 TRUE COPY OF LETTER NO,VLD1-025801/19 DATED 15.2.2020 AND ENGLISH TRANSLATION. Exhibit P14 TRUE COPY OF APPLICATION DATED 23.05.2018. Exhibit P15 TRUE COPY OF APPLICATION DATED 25.05.2018. Exhibit P16 TRUE COPY OF APPLICATION DATED 02.07.2018. Exhibit P17 TRUE COPY OF APPLICATION DATED 18.09.2018. Exhibit P18 TRUE COPY OF APPLICATION DATED 26.03.2019. Exhibit P19 TRUE COPY OF LETTER NO.PL2-4146/18/ERNAKULAM DATED 02.07.2019 OBTAINED UNDER RTI, ACT.