TONY J. ALAPATT Vs. KERALA STATE ELECTRICITY BOARD

JUDGEMENT

(1.) The Writ Appeal is filed aggrieved by the judgment by which the learned Single Judge repelled the appellant's challenge against the orders issued by the K.S.E.B, rejecting the appellant's request for retirement benefits. The appellant had joined the K.S.E.B as a Junior Engineer on 27.3.1965. The appellant was thereafter sent on deputation to the Chief Electrical Inspectorate under the Government of Kerala on 19.10.1969 and continued there till 23.11.1978. The appellant was relieved from the office of Chief Electrical Inspectorate on 24.11.1978 and joined duty in the office of the Chief Engineer, K.S.E.B on the same day. Thereafter, from 26.11.1978, the appellant availed leave without allowance for taking up employment abroad. The 15 year period, for which leave had been sanctioned for the appellant, expired on 25.11.1993. Instead of rejoining service, on expiry of the leave period, the appellant continued abroad, compelling the employer Board to issue Ext P2 memo dated 25.3.1995 requiring the appellant to report for duty within ten days from the date of receipt of the memo, failing which, it was informed that the appellant's service in the Board will be terminated without any further notice. Instead of responding to Ext P2, the appellant submitted a belated request (Ext P3) dated 16.1.1996 requesting for grant of leave for five more years with effect from 26.11.1993. In this context, it may be pertinent to note that in the ordinary course, the appellant would have superannuated on 31.1.1997. Ext P3 request was followed up with Ext P4 request dated 4.4.1996 by which the appellant sought permission to voluntarily retire from service with effect from 25.11.1993. Much later, i.e, more than 6 1/2 years after submission of Ext P4, the appellant again submitted Ext P8 request to allow him to retire with effect from 25.11.1993. By Ext P9, the appellant's request was rejected pointing out that during the 32 years, from the appellant's date of entry till the notional due date of retirement, the appellant had served the Board for hardly 4 1/2 years. It was also pointed out that the appellant had served his employer abroad for about 28 years, flouting the rules and regulations of the Board. Hence, the appellant was informed that his request for retirement benefits, treating him to have voluntarily retired from service with effect from 25.11.1993, is unethical, inadmissible and against public interest. Though the appellant preferred an appeal against Ext P9, the same was rejected, as evidenced by Ext P14.

(2.) In the Writ Petition the petitioner had contended that he came to know about Ext P2, requiring him to return for duty, only when he reached India in 1996. That thereupon, the petitioner had sought for extension of leave by five more years with effect from 26.11.1993, after condoning the absence for the period from 26.11.1993 till 16.1.1996, the date on which the petitioner submitted Ext P3 request. It was contended by the petitioner that by not responding to Ext P3 letter, the respondents effectively prevented the petitioner from rejoining service and therefore the respondents cannot now turn around and accuse the petitioner of not rejoining service in time. The further contention of the petitioner was that, under any circumstance, the denial of retirement benefits to him is nothing less than a violation of the petitioner's constitutional right to property and his fundamental right to life under Article 21 of the Constitution of India.

(3.) In their counter affidavit, the respondents contended that Ext P2 memo was sent to the petitioner's foreign address by registered post and the letter was delivered promptly. In spite of receipt of Ext P2, the petitioner continued in his employment abroad, since it was more beneficial to him. It was further contended that even if Ext P4 letter is to be treated as the request for voluntary retirement, as per Rule 56 of Part III KSR, in order to retire from service voluntarily, the employee should have qualifying service of at least 20 years. Further, the employee should give at least three months prior notice of his intention to retire from a particular date. The petitioner had qualifying service of only less than 4 1/2 years and by the time Ext P4 was submitted, the date of superannuation the petitioner's service stood terminated, consequent to his refusal to join duty even after receipt of Ext P2 memo.