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2025 DIGILAW 180 (KER)

SABU VARGHESE v. COCHIN PORT TRUST

2025-02-04

AMIT RAWAL, K.V.JAYAKUMAR

body2025
JUDGMENT : Amit Rawal, J. 1. The present writ appeal is directed against the judgment of the Single Bench whereby the leave granted to the appellant – petitioner vide Exts.P1, P2 and P3 on 28.07.2010, 17.07.2012 and 19.07.2014 for the period mentioned therein after a gap of almost three(3) years of first leave has been recalled on the premise that it was done inadvertently and there was a rectification of the mistake as it could not have been considered as eligible leave but should have been extra ordinary leave without medical certificate, therefore, the employee was not entitled to the increment as per the Fundamental Rule 26. Learned Single Bench did not accept the aforementioned challenge and dismissed the writ petition. 2. Learned counsel appearing on behalf of the appellant - petitioner submitted that appellant – petitioner had taken the leave without pay for two(2) years on 28.07.2010, another two(2) years on 17.07.2012 and then on 19.07.2014. Without complying with the principles of natural justice the respondent had an audacity in sending the impugned order Ext.P7 deferring the increment as well as deducting the amount of half pay leave and earned leave in terms of money. In support of the contention relied upon the Division Bench judgment of High Court of Himachal Pradesh in S.R.Mehrotra v. H.P.University Through Registrar [1987 0 Supreme(HP) 83] to contend that once the leave is sanctioned cannot be cancelled or varied retrospectively without affording an opportunity of hearing. In the instant case is also learned Single Bench completely swayed away from the fact that no opportunity of hearing was granted. Even otherwise, once leave was granted the error as attempted to be rectified could not have been done as is against the doctrine and principles of estoppel. 3. On the other hand, learned counsel appearing on behalf of the respondents submitted that the mistake can always be rectified. Show cause notice could not be given as the appellant – petitioner was residing in Ireland. But the order Ext.P7 was also sent through e-mail. It was in accordance with Clause 28 of Chapter 4 of Cochin Port Employees (Leave) Regulations, 1978 , as well Rule 26 of Fundamental Rules . 4. We have heard the learned counsel for the parties and appraised the paper book. 5. But the order Ext.P7 was also sent through e-mail. It was in accordance with Clause 28 of Chapter 4 of Cochin Port Employees (Leave) Regulations, 1978 , as well Rule 26 of Fundamental Rules . 4. We have heard the learned counsel for the parties and appraised the paper book. 5. Clause 28 of Chapter 4 of Cochin Port Employees (Leave) Regulations, 1978 , as well Rule 26 of Fundamental Rules reads as under: 28. Extraordinary leave (1) Extraordinary leave may be granted to an employee; (a) When no other leave is admissible. (b) When other leave is admissible but the employee applied in writing for the grant of extraordinary leave; (2) Unless the Board in view of the exceptional circumstances of the case otherwise determines, no employee, who is not permanent employ shall be granted extraordinary leave on any one occasion in excess of the following limits :- (i) three months. (ii) Six months where the employee has completed one year's continuous service on the date of expiry of leave of the kind due and admissible under these Regulations, including three months extraordinary leave under clause (i) and his request for such leave is supported by a medical certificate as required by these regulations; (iii) Eighteen months, where the employee who has completed one year's continuous service is undergoing treatment for. (a) Pulmonary tuberculosis or pleurisy of tubercular origin in an institution recognised for treatment of tuberculosis as per the list appended. NOTE : The concession of extraordinary leave upto eighteen months shall be admissible also to an employee suffering from pulmonary tuberculosis of pleurisy of Tubercular origin who receives treatment at his residence under a tuberculosis specialist recognised as such by the State Administrative Medical Officer concerned and produces certificate signed by that specialist to the effect that he is under his treatment and that he has reasonable chances of recovery on the expiry of the leave recommended. (b) Tuberculosis of any other part of the body by a qualified Tuberculosis Specialist or a Civil Surgeon; or (c) Leprosy in a recognised Leprosy Institution or by a Civil Surgeon or a Specialist in Leprosy Hospital recognised as such by the State Administrative Medical Officer concerned or approved by the Board in this behalf; (d) Cancer or mental illness in an institution recognised for the treatment of such disease or by a Civil Surgeon or a specialist in such disease. Note : For this purpose 'Medical Certificate' includes a medical certificate issued by the Chief Medical Officer of the Port Trust Hospital. (iv) twenty four months, where the leave is required for the purpose of prosecuting studies certified to be in the Board's interest, provided the employee concerned has completed three years continuous service on the date of expiry of leave of the kind due and admissible under these Regulations, including three months extraordinary leave under Clause (1). (3)(a) Where an employee is granted extraordinary leave in relaxation of the provisions contained in clause (iv) of sub-regulation (2) he shall be required to execute a bond in Form 10 undertaking to refund to the Board the actual amount of expenditure incurred by the Board during such leave plus that incurred by any other agency with interest thereon in the event of his not returning to duty on the expiry of such leave or quitting the service before a period of three years after return to duty. (b) The bond shall be supported by sureties from two permanent employees having a status comparable to or higher than that of the employee. (4) Two spells of extra-ordinary leave, if intervened by any other kind of leave, shall be treated as one continuous spell of extraordinary leave for the purpose of subregulation (2) (5) The authority competent to grant leave may commute retrospectively periods of absence without leave into extraordinary leave." FR . 26 . The following provisions prescribe the conditions on which service counts for increments in a time-scale:— (a) All duty in a post on a time-scale counts for increments in that timescale: Provided that, for the purpose of arriving at the date of the next increment in that time-scale, the total of all such periods as do not count for increment in that time-scale, shall be added to the normal date of increment. (b) (i) Service in another post, other than a post carrying less pay referred to in Clause (a) of Rule 15, whether in a substantive or officiating capacity, service on deputation out of India and leave except extraordinary leave taken otherwise than on medical certificate shall count for increments in the time-scale applicable to the post on which the Government servant holds a lien, as well as in the timescale applicable to the post or posts, if any, on which he would hold a lien had his lien not been suspended. (ii) All leave except extraordinary leave taken otherwise than on medical certificate and the period of deputation out of India shall count for increment in the time-scale applicable to a post in which a Government servant was officiating at the time he proceeded on leave or deputation out of India and would have continued to officiate but for his proceeding on leave or deputation out of India: Provided that the President may, in any case, in which he is satisfied that the extraordinary leave was taken for any cause beyond the Government servant's control or for prosecuting higher scientific and technical studies, direct that extraordinary leave shall be counted for increments under Clause(i) or (ii). (c) (i) If a Government servant, while officiating in a post of holding a temporary post on a time-scale of pay, is appointed to officiate in a higher post or to hold a higher temporary post, his officiating or temporary service in the higher post shall, if he is reappointed to the lower post, or is appointed or reappointed to a post on the same time-scale of pay, count for increments in the time-scale applicable to such lower post. The period of officiating service in the higher post which counts for increment in the lower post is, however, restricted to the period during which the Government servant would have officiated in the lower post but for his appointment to the higher post. This clause applies also to a Government servant who is not actually officiating in the lower post at the time of his appointment to the higher post, but who would have so officiated in such lower post or in a post on the same time-scale of pay had he not been appointed to the higher post. This clause applies also to a Government servant who is not actually officiating in the lower post at the time of his appointment to the higher post, but who would have so officiated in such lower post or in a post on the same time-scale of pay had he not been appointed to the higher post. (ii) If a Government servant on reversion from an ex cadre post to the parent cadre is appointed to a post on a scale lower than that of the ex cadre post but not on the same time-scale as the post held at the time of his transfer to the ex cadre post, the service rendered on the higher scale in the ex cadre post shall count for increments in the time-scale applicable to the cadre post, subject to the same conditions as are laid down for cases falling under proviso (1) (iii) to Rule 22. (d) Foreign service counts for increments in the time-scale applicable to— (i)the post in Government service on which the Government servant concerned holds a lien as well as the post or posts, if any, on which he would hold lien had his lien not been suspended, (ii)the post in Government service in which the Government servant was officiating immediately before his transfer to foreign service, for so long as he would have continued to officiate in that post or a post on the same timescale but for his going of foreign service, and (iii) any post in the parent cadre in a lower scale of pay to which the Government servant is appointed on reversion from the ex cadre post, subject to the fulfilment of the conditions mentioned in proviso (1) (iii) to Rule 22. (e) Joining time counts for increment— (i) If it is under Clause (a) or Clause (c) of Rule 105, in the time-scale applicable to the post on which a Government servant holds a lien or would hold a lien had his lien not been suspended as well as in the time-scale applicable to the post, the pay of which is received by a Government servant during the period; and (ii) If it is under Clause (b) of Rule 105, in the time-scale applicable to the post / posts on which the last day of leave before commencement of the joining time counts for increments. EXPLANATION.— For the purposes of this rule, the period treated as duty under sub-clause (b) of Clause (6) of Rule 9 shall be deemed to be duty in a post, if the Government servant draws pay of that post during such period. “ 6. No doubt the aforementioned Fundamental Rules 26 envisaged that persons without medical certificate would be entitled extra ordinary leave and would not be entitled to the benefit of increment. But the fact remains no opportunity of hearing was granted. As far as the leave of the first period is concerned ie., 19.09.2010 to 24.06.2012, it was beyond the period of limitation for, the order Ext.P7 was passed in 2015. Paragraph No.4 of the judgment relied upon S.R.Mehrotra v. H.P.University Through Registrar [1987 0 Supreme(HP) 83] reads as under: It may be observed at the outset that leave once sanctioned cannot be cancelled or varied retrospectively to the disadvantage or detriment of an employee without affording an opportunity of being beard to him. Any such action bearing upon the conditions of his service taken without compliance with the principles of natural justice must be regarded as unjust, unfair, arbitrary and irrational and as violative of the fundamental rights guaranteed by Articles 14 and 16 of the Constitution. It is not in dispute that the decision recorded in para 2 of the letter dated August 4, 1987, Annexure P-1, addressed by the Vice- Chancellor to the petitioner canceling with retrospective effect the half day casual leave granted to the petitioner on fifteen different occasions prior to July 30, 1987 and treating the same as full day casual leave is arrived at without prior notice and hearing. Under the circumstances, the decision deserves to be treated as null and void. 7. There has to be compliance of principles of natural justice. Even otherwise, in case at this stage we feel it appropriate to grant liberty to the respondents to afford opportunity, no useful purpose would be served on the premise that no plausible explanation or reasons have been granted and implementation against the doctrine of estoppel. Accordingly, judgment of single Bench is set aside. Writ appeal stands allowed. Respondents are directed to refund the amount deducted on account of withholding of increment, half pay leave and earned leave within a period of one(1) month from the date of receipt of certified copy of this judgment.