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THOMAS PHILIP, S/O.PHILIP, ASSISTANT versus THE KERALA STATE ELECTRICITY BOARD

High Court of Kerala

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THOMAS PHILIP, S/O.PHILIP, ASSISTANT v. THE KERALA STATE ELECTRICITY BOARD - WP(C) No. 6641 of 2006(N) [2006] RD-KL 1676 (20 November 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 6641 of 2006(N)

1. THOMAS PHILIP, S/O.PHILIP, ASSISTANT
... Petitioner

Vs

1. THE KERALA STATE ELECTRICITY BOARD,
... Respondent

2. THE CHIEF ENGINEER (HRM), KERALA

3. THE DEPUTY CHIEF ENGINEER, KERALA STATE

4. THE EXECUTIVE ENGINEER,

For Petitioner :SRI.GEORGE ABRAHAM

For Respondent :SRI.K.S.ANIL, SC, KSEB

The Hon'ble MR. Justice K.K.DENESAN

Dated :20/11/2006

O R D E R

K.K. DENESAN, J.

= = = = = = = = = = = = = = = W.P.(C) No. 6641 OF 2006 N = = = = = = = = = = = = = = =

Dated this the 20th November, 2006



J U D G M E N T

The petitioner had been working as Asst. Executive Engineer in the service of the 1st respondent-Board. He commenced service as Lineman on 23-9-1974. In due course of time he got promotions and finally attained the age of superannuation on 31-8-2004 while being designated as Asst. Executive Engineer.

2. The only question for consideration is whether the petitioner is entitled to claim terminal benefits having regard to the service rendered by him and the emoluments last drawn by him. The respondents would contend for the position that the petitioner has no right to claim terminal benefits he being a person whose services have been terminated by the Board as per order dated 29-3-2005.

3. It is admitted position that the petitioner availed leave without allowances for getting employment abroad with effect from 5-12-1995. The leave initially sanctioned was extended from time to time. Ext. P2 dated 26-6-2000 is the last order extending the period WPC No. 6641/2006 -2- of leave with effect from 1-1-2000 for a period of 3 years and 8 months. Thus the leave sanctioned expired on 1-8-2003. The petitioner could not join duty on the expiry of the sanctioned leave. Though he had applied for extension, no orders were issued on that request. On 31-8-2004 Ext. P7 notice was issued to the petitioner to show cause why the Board should not pass orders deeming that the service of the petitioner stood terminated with effect from 31-8-2003. The date on which Ext. P7 was issued assumes significance, for, it is the date of his retirement from service on superannuation. Ext. P8 reply was sent by the petitioner to Ext. P7. This was followed by Ext. P9 representation. According to the petitioner, until he approached this Court with the above writ petition, no order finalising the proceedings initiated as per Ext. P7 had been served on him.

4. The main relief prayed for in this writ petition is to quash Exts. P4 and P7 orders and for a direction to the 1st respondent to sanction the terminal benefits due to the petitioner including Provident Fund, D.C.R.G., commuted value of pension and monthly pension.

5. In the counter affidavit filed by the WPC No. 6641/2006 -3- respondents it is stated that the petitioner's service was terminated as per order passed on 29-3-2005 for unauthorised absence rather overstay of the period of leave sanctioned. It is contended that a person whose services have been terminated is not entitled for terminal benefits.

6. The main contention urged by the petitioner is that no order terminating the service of the petitioner was passed until he attained the age of 55, the date of retirement on superannuation. He therefore continued to be in the service of the Board notwithstanding the fact that the respondent-Board did not permit him to join duty after the expiry of the period of leave he had applied for. According to the counsel for the petitioner, the petitioner should be deemed to have been in service and therefore the denial of retirement benefits is not in accordance with law.

7. Ext. P4 is the order passed by the 4th respondent disallowing the application for leave without allowances for the last spell, viz., with effect from 1-8-2003 onwards. Leave cannot be claimed as of right. This is more so in the case of leave without allowances. The petitioner was sanctioned leave for a pretty long period of time and the Board WPC No. 6641/2006 -4- cannot be found fault with for insisting that he should report for duty immediately on the expiry of the leave granted. Though the petitioner would claim that there was sufficient justification for him to apply for further extension, in the absence of cogent materials to take the view that the denial of the leave applied for from 1-8-2003 onwards was unreasonable or unjust, I am not inclined to interfere with Ext. P4 order.

8. However, I think the contention of the petitioner that he is entitled to count for the purpose of terminal benefits the entire period of his service upto the date on which he was due to retire from service on superannuation, is acceptable. Termination of service can be effected only when the incumbent is in service. After attaining the age of superannuation, the respondents have no authority to pass any order terminating the service of the petitioner. If at all any such order has been passed, that order will not have any effect in the eye of law. Ext. P7 is a show cause notice. That was issued on the last date on which the petitioner was due to retire from service. The subsequent order terminating the service of the petitioner was issued on 29-3-2005. That order is without jurisdiction. Therefore, Ext. P7 as well as WPC No. 6641/2006 -5- all further proceedings pursuant to that order including the proceedings dated 29-3-2005 is liable to be set aside. I do so.

9. In the result, there shall be an order directing the respondents to consider the claim of the petitioner for such retirement benefits as can be allowed to him having regard to his qualifying service and the last drawn salary computed in terms of the provisions in the Kerala Service Rules as also other orders on the subject. The writ petition is allowed to the above extent. Monetary benefits due to the petitioner including pension, D.C.R.G., commutation value of pension and Provident Fund shall be paid to him within three months on the petitioner producing a copy of the judgment. K.K. DENESAN

JUDGE

jan/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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