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2020 DIGILAW 986 (KER)

Shylaja K. Unnithan v. State of Kerala

2020-11-19

ANU SIVARAMAN

body2020
JUDGMENT : This Writ Petition is filed seeking the following reliefs:- “i. To call for the records leading to the issue of Ext.P3 and quash the same by issue of a writ in the nature of certiorari. ii. To declare that the petitioner is entitled to special disability leave for the disability suffered by her as evident from Exts.P2 to P6 applying the provisions under Rules 97 and 98 Part I of the Kerala Service Rules. iii. To issue a writ in the nature of mandamus directing 1st respondent to grant special disability leave to the petitioner considering her application and other supporting documents as Exts.P2 to P6 following the provisions under Rules 97 and 98 Part I of the Kerala Service Rules. iv. To issue a writ in the nature of mandamus directing respondents to allow all consequential benefits to the petitioner following grant of special disability leave as claimed for in Exts.P2 to P6.” 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. The petitioner, who is a Higher Secondary School Teacher in the 4th respondent’s school, had met with an accident on 17.08.2012 at 9.00 a.m. while she was riding a scooter on her way to the school from her residence. The scooter, which she was riding, was involved in a motor accident and the petitioner sustained serious injuries. She was hospitalized. She had sought special disability leave in terms of Rules 97 and 98 of Part I of the Kerala Service Rules. The 3rd respondent, by Ext.P8 order, returned the application stating that special disability leave could not be sanctioned to the petitioner. The petitioner filed an appeal before the Government, which was rejected by Ext.P11, which only stated that the petitioner is not eligible for special disability leave since the accident did not occur during her official duty. The petitioner challenged Ext.P11 before this Court. By Ext.P12 judgment, the contentions of the petitioner were noticed and Exts.P8 and P11 were set aside and the Government was directed to consider the issue on its merits and to pass a speaking order. Ext.P13 order has been passed, which is under challenge in this Writ Petition. The petitioner challenged Ext.P11 before this Court. By Ext.P12 judgment, the contentions of the petitioner were noticed and Exts.P8 and P11 were set aside and the Government was directed to consider the issue on its merits and to pass a speaking order. Ext.P13 order has been passed, which is under challenge in this Writ Petition. In Ext.P13, the Government states that, as per R.97, Part I, K.S.R., special disability leave is granted to an officer, who is disabled by injury intentionally inflicted or caused in or in consequence of due performance of his official duties or in consequence of official position. R.98 provides that special disability leave is to be granted to an officer, who is disabled by injury accidentally incurred in or in consequence of the due performance of his official duties or in consequence of his official position or by illness incurred in the performance of any particular duty, which has the effect of increasing his liability to illness or injury beyond the ordinary risk. It is stated that the petitioner was riding from her residence to the school when the accident occurred and therefore, the accident cannot be considered as having occurred during the performance of her official duties. On these grounds, the application was rejected. 4. The learned counsel for the petitioner places reliance on a decision of a Division Bench of this Court in E.S.I. Corporation v. Chellappan ( 2000 (3) KLT 419 ). The Division Bench, after considering the factual aspects of the case, where the injury occurred when the toddy tapper had gone to the premises for tapping toddy, held that the accident had occurred while he was about to climb the coconut tree for doing the noon tapping. It was found that since the accident occurred while the employee was in preparation for carrying out his duty as a toddy tapper, the family of the deceased employee was entitled to the benefits under the ESI Act. It is submitted by the learned counsel for the petitioner that earlier Bench decisions of this Court in Varkeyachan v. Thomman ( 1979 KLT 97 ) and United India Insurance Co. Ltd. v. Philo ( 1996 (1) KLT 423 ) have been referred to by this Court. It was held that injuries suffered by drivers during the course of their employment would fall within the category of injuries, which have arisen out of the employment. Ltd. v. Philo ( 1996 (1) KLT 423 ) have been referred to by this Court. It was held that injuries suffered by drivers during the course of their employment would fall within the category of injuries, which have arisen out of the employment. The learned counsel would also place reliance on a decision of the Apex Court in Madan Singh Shekhawat v. Union of India & Ors., (1999) 6 SCC 459 ) in support of the contentions that a disability suffered by an officer even when he is on casual leave could be considered as a disability suffered in the course of employment. The learned counsel for the petitioner also relies on the concept of Notional Extension of the work place and contends that since it is an admitted fact that the petitioner was on her way to work when she suffered the accident, the accident could only be as a consequence of her employment and that as such, Rules 97 and 98 are clearly attracted in the present case. 5. A counter affidavit has been placed on record by the 3rd respondent. It is the facts of the case are admitted therein. However, it is submitted that as per R.97 Part I, K.S.R., special disability leave is granted to an officer, who is disabled by injury intentionally inflicted or caused in or in consequence of due performance of his official duties or in consequence of his official position. It is contended that the accident that occurred to the petitioner was not during the performance of official duty and therefore, her claim for special disability leave is baseless. 6. Having considered the contentions advanced on either side, I notice that it is an admitted position that the petitioner was riding her two wheeler to school on her way to work. It was, at this juncture, that the motor accident occurred and she suffered the injuries. Going by the terms of Rules 97 and 98 of Part I, K.S.R. reads as follows:- “Rule 97. (1) Subject to the conditions hereinafter specified, special disability leave may be granted to an officer who is disabled by injury intentionally inflicted or caused in, or in consequence of the due performance of his official duties or in consequence of his official position. (1) Subject to the conditions hereinafter specified, special disability leave may be granted to an officer who is disabled by injury intentionally inflicted or caused in, or in consequence of the due performance of his official duties or in consequence of his official position. (2) Such leave shall not be granted unless the disability manifested itself within three months of the occurrence to which it is attributed, and the person disabled acted with due promptitude in bringing it to notice. But the Government, if they are satisfied as to the cause of the disability, may permit leave to be granted in cases where the disability manifested itself is more than three months after the occurrence of its cause. (3) The period of leave granted shall be such as is certified by the medical attendant of the officer to be necessary. It shall not be extended except on the certificate of the medical attendant of the officer and shall in no case exceed 24 months. (4) Such leave may be combined with leave of any other kind. (5) Such leave may be granted more than once if the disability is aggravated or reproduced in similar circumstances at a later date, but not more than 24 months of such leave shall be granted in consequence of any one disability. (6) Such leave shall be counted as duty in calculating service for pension and shall not be debited against the leave account. (7) Leave salary during such leave shall be granted— (a) for the first four months of any period of such leave including a period of such leave granted under clause (5) of this rule as under Rule 92, and (b) for the remaining period of any such leave, as under Rule 93. (8) In the case of a person to whom the Workmen’s Compensation Act, 1923, applies, the amount of leave salary payable under this rule shall be reduced by the amount of compensation payable under Section 4(1)(d) of the said Act. Rule 98. (8) In the case of a person to whom the Workmen’s Compensation Act, 1923, applies, the amount of leave salary payable under this rule shall be reduced by the amount of compensation payable under Section 4(1)(d) of the said Act. Rule 98. The application of the provisions of Rule 97 may be extended to an officer who is disabled by injury accidentally incurred in or in consequence of the due performance of his official duties or in consequence of his official position, or by illness incurred in the performance of any particular duty which has the effect of increasing his liability to illness or injury beyond the ordinary risk attaching to the civil post which he holds. The grant of this concession is subject to the further conditions :-- (1) that the disability, if due to disease must be certified by the Medical Attendant of the officer to be directly due to the performance of the particular duty; (2) that, if the officer has contracted such disability during service, it must be, in the opinion of the Government, so exceptional in character, or in the circumstances of its occurrence as to justify such unusual treatment as the grant of this form of a leave; and (3) that the period of absence recommended by the medical attendant of the officer may be covered in part by leave under this rule and in part by other leave, and that the amount of special disability leave granted on full pay i.e., pay admissible had he been on duty during the period of leave may be less than four months.” 7. It is, therefore, clear from a reading of the provisions that an injury caused in consequence of due performance of official duties and an injury caused in the performance of official duties are both liable to be considered for the purpose of grant of special disability leave. Going by the decisions of the Apex Court as also the decisions of a Division Bench of this Court, the injury suffered by the petitioner while she was admittedly on her way to work can only be seen as an injury suffered in consequence of her employment. 8. Going by the decisions of the Apex Court as also the decisions of a Division Bench of this Court, the injury suffered by the petitioner while she was admittedly on her way to work can only be seen as an injury suffered in consequence of her employment. 8. In the above view of the matter, I am of the opinion that the stand taken in Ext.P13 to the effect that only an injury suffered while actually carrying out the official duties would come under an injury for claiming the benefit of Rules 97 and 98 is completely unwarranted. Such a strict interpretation of these rules is not contemplated especially in a case where it is not in dispute that the petitioner suffered the accident while she was on her way to the school at 9.00 a.m. 9. In the above view of the matter, I am of the opinion that the reasoning in Ext.P13 is unsustainable. Ext.P13 order is set aside. There will be a direction to the respondents to grant a special disability leave applied for by the petitioner for the period from 17.08.2012 to 16.12.2012 as claimed in Ext.P2. Orders shall be passed within a period of six weeks from the date of receipt of a copy of this judgment. This Writ Petition is ordered accordingly.