Anil Kumar R vs State Of Kerala
2022 Latest Caselaw 6229 Ker

              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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.