Ali Moinuddin vs The Andhra Pradesh State Electricity Board and Another

S.R. Nayak, J.—The petitioner, Ali Moinuddin, is an ex-employee of the respondent- Electricity Board, i.e., Andhra Pradesh State Electricity Board. In this writ petition he has questioned the legality and the validity of the order of the 2nd respondent dated 10-6-1988 and the order of the 1st respondent dated 9-11-1990 and for a consequential direction to the respondents to sanction increment to him for the leave period from 24-9-1980 to 27-3-1985 with all consequential benefits.

The facts leading to the filing of this writ petition as pleaded in the affidavit filed in support of the writ petition be noted briefly as under:

While working as Accountant in the Board, the petitioner fell sick due to Arthitheties (sic. arthritis) complaint and he had to undergo a long-drawn medicare and treatment and he was advised not to attend to the duties. The petitioner applied for leave from time to time and ultimately after recovery from illness he reported for duty on 27-3-1985. The petitioner was working under the Superintending Engineer (Operation), City Circle, Hyderabad. The period of leave regularised by the Superintending Engineer is as under:

"Leave period Nature of leave Reference No. & sanctioned by date in which the the S.E. Leave was regularised 16-6-1980 to 15 days E.L. Memo No. Estt/C4/860/80, 10-7-1980 dt: 16-8-1980 11-7-1980 to 29 days HPL Memo No. Estt/C4/860/80 8-8-1980 dt: 16-8-1980. 9-8-1980 to 15 days El 23-8-1980 Memo No. Estt/C4/1175/80 24-8-1980 to 28 days HPL dt: 27-9-1980. 20-9-1980 21-9-1980 to 3 days HPI Memo No. Estt/C4/804/85, 23-9-1980 dt: 9-7-1985. 24-9-1980 to 31-10-1981 1-11-1981 to 31-1-1982 1-2-1982 to 30-4-1982 upto 31-12-1982 E.O.L. on M.C. upto 30-6-1983 Memo No. Estt/C4/804/85 upto 30-9-1983 dated 9-7-1985" upto 31-12-1983 upto 31-3-1984 upto 25-5-1984 upto 30-10-1984 upto31-12-1984 upto 28-2-1985 1-3-85 to 27-3-85

Thereafterwards the Superintending Engineer sent a proposal to the 2nd respondent recommending that the Extraordinary Leave period be counted for the purpose of granting increments to the petitioner. The 2nd respondent rejected the proposal on the ground that the Superintending Engineer did not have the power to, sanction EOL for a period of more than six months and also on the ground that the petitioner did not mention the nature of the leave in his leave application. This order was passed by the 2nd respondent on 10-6-1988. That led to the petitioner preferring Revision before the Board-1st respondent herein The 1st respondent by an order dated 9-11-1990 affirmed the view taken by the 2nd respondent and held that the petitioner is not entitled for sanction of increments during the period of EOL from 24-9-1980 to 27-3-1985. Hence this writ petition.

Although this writ petition was filed in the Court on 16-1-1991 and the respondents are served with notices and represented by the Standing Counsel, till date no counter is filed. Therefore, the Court has to decide the merits of the case on the basis of the sworn statement and the material placed before the Court by the petitioner.

In para 5 of the affidavit, it is stated that before the petitioner resumed duty on 27-3-1985, the Regional Medical Board examined him and certified that the petitioner was ill. On the basis of this certification by the Regional Medical Board, the Superintending Engineer treated the absence of the petitioner from 24-9-1980 to 27-3-1985 under different heads of leave as could be seen from the table extracted above. The period of absence from 24-9-1980 to 27-3-1985 was treated as Extraordinary Leave on medical grounds obviously on the basis of certification made by the Regional Medical Board. The proviso to Clause (b) of Regulation 33 of the A.P. State Electricity Board Employees Service Regulation Act (Part-1) provides that the Board shall have power in any case in which it is satisfied that the leave taken on account of illness or for any other cause beyond the employee''s control to direct that Extraordinary Leave shall be counted for increment under this clause. The power conferred upon the Board under the proviso is a discretionary power and that discretion is required to be exercised reasonably and in good faith and not arbitrarily. The proviso enables the Board to direct that the Extraordinary leave granted to an employee shall be counted for increments in the event of such employee availing the leave on the ground of illness or for any other cause beyond his control. As regards the present case is concerned, there cannot be any second opinion that the petitioner availed the leave on account of his illness and the Regional Medical Board has certified to that effect. Therefore, the petitioner''s case attracts the discretionary power of the Board contemplated under the proviso. Therefore, the only question that arises for consideration is whether this discretionary power was properly and reasonably exercised by the 1st respondent. There is an error apparent on the face of the order of the 1st respondent dated 9-11-1990. The request of the petitioner has been rejected only on the ground that the petitioner did not fulfill the conditions laid down in the Regulation No. 33(b) of the Regulations referred to above. The 1st respondent does not seem to have noticed the discretionary power conferred upon it under the proviso to clause (b). Since the petitioner has produced the satisfactory materials to show that he was on leave on account of illness and beyond his control, fairness required that the Board should have directed to take into account the period of E.O.L. between 24-9-1980 and 27-3-1985 for the purpose of sanctioning the periodical increments. No acceptable reasons or grounds are set out to deny that relief to the petitioner either in the order or by way of counter-affidavit in this Court. A case is made out for interference.

The writ petition is allowed and the impugned orders are quashed. The respondents are directed to sanction periodical increments to the petitioner for the Extraordinary Leave period, i.e., from 24-9-1980 to 27-3-1985, and after such sanction of increments, to extend all the pecuniary benefits flowing from sanction of such increments. The petitioner is entitled to the costs of the writ petition. Advocate''s Fee Rs. 500/-.