Judgment:
'Vanity and arrogance can have no room in the discharge of official functions and duties', is a salutory slogan in service jurisprudence. Nonetheless, the case on hand unravels the plight of an employee who became a victim of arrogance and vanity of the first and the fourth respondents. The petitioner joined the Pallikkunnu Grama Panchayat as Special Grade Secretary on 27.12.2010. She applied for earned leave from 12.1.2011 to 31.3.2011 on medical ground. Since her service book was not available in the office of the second respondent-Deputy Director of Panchayat, Kannur, pending decision thereon, the second respondent directed her to hand over charge to the Junior Superintendent of Pallikkunnu Grama Panchayat vide Ext.P1 proceedings dated 14.1.2011 and the latter was directed to take full additional charge of Special Grade Secretary, with a view to avert any possible disturbance in the quotidian functions of the said office. Accordingly, she handed over the charge to the Junior Superintendent. In the meanwhile, she had miscarriage on 15.1.2011 and thereupon, she was advised complete rest. Consequently, she sought for considering the leave from 15.1.2011 as leave on miscarriage in terms of the provisions under Rule 101 Part I of the Kerala Service Rules (for short the 'KSR'). As per Ext.P2, the second respondent granted earned leave for three days from 12.1.2011 to 14.1.2011 and leave on miscarriage for 42 days from 15.1.2011 to 25.2.2011. Thereafter, leave on medical grounds was sanctioned to her as per Ext.P3. The second respondent again sanctioned her leave from 1.4.2011 to 16.4.2011. In the meanwhile, owing to her transfer to a station nearer to her residence viz., Pappinissery Grama Panchayat, she sought for cancellation of the unavailed portion of leave. As per Ext.P4, the Director of Panchayath, the third respondent cancelled the unavailed portion of leave and posted the petitioner to Pappinissery Grama Panchayat. Ext.P5 is the formal consequential order passed by the second respondent. Consequently, she joined there on 1.4.2011.Thereafter, the petitioner approached the first respondent on several occasions requesting to draw and disburse her salary, the leave salary from 12.1.2011 to 31.3.2011 and also for forwarding her Last Pay Certificate (LPC) to Pappinissery Grama Panchayat to enable her to draw salary from 1.4.2011. Inaction on the said requests compelled the petitioner to approach the second respondent through Ext.P6 representation. On its receipt, the second respondent directed the first respondent to draw and disburse the leave salary of the petitioner and also to forward her LPC to the concerned panchayat, as per Ext.P7. However, the first respondent did not comply with the said directions citing the reasons viz., passing of a resolution by the panchayat on 28.4.2011 holding the petitioner unauthorisedly absent, passing of an order by the fourth respondent, the President of Pallikkunnu Grama Panchayat not to disburse salary to the petitioner and also his action in not authorising for payment of petitioner's salary. On receipt of Ext.P8 carrying such explanation, the second respondent informed the first respondent through Ext.P9 that the said explanations for non-compliance with the directions in Ext.P7 are not satisfactory. The first respondent was informed that leave was duly sanctioned to the petitioner and that as per the relevant rules, an authorisation of the President is not required for disbursement of salary. The non-compliance with the said directions, even thereafter, made the second respondent to bring the matter to the attention of the third respondent for appropriate action in the matter. Nevertheless, the fact remains that the petitioner's leave salary was not so far been disbursed and the LPC was not so far been forwarded to Pappinissery Grama Panchayat. The grievance of the petitioner pertains to the non-compliance with such directions by the first respondent and the consequential non-disbursement of her salary, leave salary and the delay in getting the monthly salary to which she is entitled on account of the non-forwarding of the LPC to the concerned panchayat. It is contended that as per Rule 34(3) of the Kerala Panchayath Raj (Accounts) Rules, 2011 (for brevity the 'Accounts Rules') notified as per G.O.(MS).No.83/11/LSGD dated 28.3.2011, the Secretaries of panchayats have to make statutory and mandatory payments provided under sub-section (2)(a) of section 213 of the Panchayath Raj Act and other payments ordered by the Government irrespective of authorization by the President. It is in the said circumstances that this writ petition has been filed mainly with the following reliefs:-
1) A writ of mandamus or other appropriate writ, direction or order commanding the first respondent to claim and disburse the salary of the petitioner for the period from 27.12.10 to 11.1.11 and leave salary from 12.1.11 to 31.3.11 to the petitioner forthwith.
2) A declaration to the effect that under Rule 34 (3) of the Kerala Panchayath Raj (Accounts) Rules 2011 no authorization of the president of the grama panchayath is necessary for disbursement of salary and other claims of officers and employees of the grama panchayath.
3) A direction to the first respondent to forward last pay certificate (LPC) in respect of the petitioner to Pappinissery grama panchayath forthwith.
2. A counter affidavit has been filed in this writ petition by the first respondent. It is stated therein that as per law, an application for leave of an officer of the panchayat has to be recommended by the President of the panchayat and that the fourth respondent-President has got authority to entertain or reject Ext.R1(a) application for leave by virtue of Rule 13 of the Kerala Panchayath Raj (Control over Officers) Rules, 1997 (for short the 'Rules'). In the context of the rival contentions, it is only apt to extract paragraph 6 of the counter affidavit filed by the first respondent. It reads thus:-
"The fourth respondent exercised the powers under sec.13(2) of the Rules and rejected the application on the ground that the projects initiated by the Panchayath are on its finishing stage and the Panchayath has to put in motion of the projects for the ensuing year 2011-2012. Ext.R1(a) would show that the fourth respondent has rejected the application for leave submitted by the petitioner. The second respondent can act only when the application for leave is recommended by the President of a local authority. Therefore, the averments in paragraph 2 are not correct and hence denied."
(emphasis added)
3. It is admitted in paragraph 7 of the said counter affidavit that the second respondent had directed the Junior Superintendent to take charge from the petitioner. But, the contention is that the said direction could not have been taken to mean that the petitioner's application for leave was granted by the competent authority. It is further stated in the counter affidavit as hereunder:-
On receipt of Ext.R1(a) application, the fourth respondent issued a show cause notice dated 12.1.2011 to the petitioner and the same was replied through Ext.R1(b). The petitioner had not shown any cause for her unauthorised absence. The petitioner is not justified in approaching the second respondent directly without the knowledge of the fourth respondent.
4. Paragraph 10 of the counter affidavit also assumes relevance and it reads thus:-
"It is pertinent to note that the sanctioning of leave granted by the second respondent was cancelled by the third respondent. Therefore the second respondent cannot usurp in to the powers of respondent No.4 and the same is evident from Ext.P4. Ext.P4 would show that the second respondent has no powers to sanction leave."
(emphasis added)
5. The further contentions in the said counter affidavit are as hereunder:-
The fourth respondent had issued Ext.R1(c) show cause notice dated 22.1.2011 to the petitioner on finding Ext.R1(b) as unsatisfactory. The petitioner had not replied to it. As per resolution No.44/11(1) of the panchayat, it was resolved not to entertain application for leave which did not contain the recommendation of the fourth respondent. Ext.R1(d) and Ext.R1(e) are the respective resolutions dated 28.4.2011 and 27.5.2011 in that regard. The petitioner is not entitled to salary for the period from 12.1.2011 to 31.3.2011. Though the salary of the petitioner from 27.12.2010 to 11.1.2011 was drawn for disbursement, the petitioner had not turned up to receive the same and hence, it was remitted back.
6. The petitioner has filed a reply to the said counter affidavit filed by the first respondent mainly stating that Rule 13(2) only empowers the President to grant casual leave to the Secretary and that she had not applied for casual leave and therefore, there was no occasion for the fourth respondent to allow or reject the leave application submitted by the petitioner. Ext.R1(a) application was for earned leave and it was withheld by the first respondent without forwarding the same to the second respondent. It is specifically stated therein that, in the said circumstances, the second respondent had acted upon the advance copy and it was in the said circumstances that she was constrained to approach the second respondent directly. The statements of the first respondent in the counter affidavit that the third respondent had cancelled the leave granted by the second respondent was made only to mislead and in fact, what was done as per Ext.P4 is only the cancellation of the unavailed portion of the leave based on her request, it is stated therein. It is alleged that Ext.R1(d) and Ext.R1 (e) resolutions were passed solely to save the first respondent to wriggle out of the disciplinary action proposed to be initiated as per Ext.P9 letter.
7. Taking into account the attending circumstances and rival contentions, this Court directed the fourth respondent to file an affidavit and an affidavit was accordingly, filed. Paragraphs 2 and 3of the said affidavit read thus:-
"2.This Hon'ble Court wanted to know why Ext.R1(a) application was not forwarded to the higher authority. The practice is that only those applications which are recommended by the President are sent to the higher authorities. Since Ext.R1(a) application was not recommended and the same was not forwarded to the higher authorities."
(emphasis added)
"The other point which the Hon'ble Court wanted to know is regarding the despatch of LPC (Last Payment Certificate). The writ petitioner has produced Ext.P10 along with writ petition. Ext.P10 would show that the matter is under the consideration of the 3rd respondent, the Director of Panchayath. We are waiting for the order from the 3rd respondent. As soon as we receive the orders from the 3rd respondent we will despatch the LPC to the authorities."
(emphasis added)
8. I have heard the learned counsel for the petitioner, the learned standing counsel and also the learned Government Pleader.
9. The rival pleadings and the documents produced on either side would bring out the following indisputable and undisputed facts and factors. Ext.R1(a) application submitted by the petitioner was not one for casual leave whilst it was an application for earned leave followed by the request to make the leave from 15.1.2011 to 25.2.2011 as leave on miscarriage. As per Ext.P1 order of the second respondent, the Junior Superintendent attached to the Pallikkunnu Grama Panchayat was given full additional charge of the Special Grade Secretary of the Pallikkunnu Grama Panchayat to prevent any possible hindrance to the quotidian functions of the Panchayat pending decision on the leave application. Evidently, non-availability the service book of the petitioner in the said office was the avowed reason for deferring the decision. Exts.P2 and P3 would reveal that subsequently, taking into account the miscarriage, leave was sanctioned to the petitioner in terms of the provisions under Rule 101 Part I of the KSR. Ext.P4 would reveal that the third respondent had cancelled only the unavailed portion of the leave granted to the petitioner by the second respondent and, that too, at the request of the petitioner. After cancelling the unavailed portion of the leave, she was posted as Special Grade Secretary in Pappinissery Grama Panchayat. As per Ext.P6, the petitioner had raised her grievances relating non-receipt of salary from 27.12.2010 to 31.3.2011 and also regarding non-forwarding of her LPC from Pallikkunnu Grama Panchayat, to the second respondent. The inaction on the part of the first respondent despite repeated requests was also brought to his notice. Thereupon, as per Ext.P7, the second respondent informed the first respondent that as per orders dated 28.1.2011 and 10.3.2011, leave was sanctioned to the petitioner from that office and directed the first respondent to draw and disburse the salary for the aforesaid period to the petitioner and also to forward her LPC to the concerned panchayat. The first respondent was also required to intimate the steps taken in that regard to the office of the second respondent besides calling from her the explanation for withholding of the leave salary and also the LPC of the petitioner. After considering Ext.P8 explanation from the first respondent and upon finding it unsatisfactory, the second respondent gave specific direction to the first respondent as per Ext.P9 as hereunder:-
(3)
. ( )
2011 34(3)
,
.
. . .
12/01/2011 31/03/2011
. . . .
.
. . .
2
.
.
10. The petitioner was granted 42 days leave under Rule 101 Part I KSR taking into account the fact that she had miscarriage, and thereafter, she was granted earned leave. The entire leave granted by the second respondent was not cancelled by the third respondent as stated by the first respondent and only the unavailed portion of the leave sanctioned to the petitioner alone was cancelled by the third respondent, that too, on her request and thereafter, the petitioner was posted to Pappinissery Grama Panchayat as its Secretary. The petitioner is now continuing there as Secretary; but she is not able to draw her salary on account of non-forwarding of her LPC from Pallikkunnu Grama Panchayat and she had also not received leave salary during the aforementioned period.
11. Before proceeding to consider the contentions and issues, a survey of the relevant provisions of law is profitable. Rules 13(2) and 13(3) of the Rules read as follows:
"Rule 13(2): The President may grant casual leave to the Secretary and to the head of office and institutions which have been lent by the Government subject to eligibility.
Rule 13(3): The granting of leave except casual leave to officers referred to in sub-rule (2) subject to eligibility and the provisions of the Kerala Service Rules, shall be by the Government officer authorised for this purpose."
Rule 34(3) of the Kerala Panchayat Raj (Accounts) Rules, 2011 reads thus:-
"34.Authorisation for Allotments and Payments--
(3) The Secretary shall make all Statutory and Mandatory Payments provided under sub-section 213 of the Act and other payments ordered by the Government irrespective of authorization by the President."
Sub-section (2)(a)(iii) to section 213 of the Kerala Panchayat Raj Act, 1994, runs as hereunder:-
2(a):-It shall be the duty of every Panchayat to provide for the payment of-
(iii) the salaries and allowances and the pensions, pensionary contributions, gratuity and provident fund contributions of its officers and employees and the allowances to the President, Vice-President and members which may be due;
12. Rule 13(2) of the Rules would undoubtedly show that the fourth respondent-President is empowered only to grant casual leave to the Secretary of Pallikkunnu Grama Panchayat and in respect of all other kinds of leave, the leave sanctioning authority as regards Secretaries of Panchayats is the empowered Government Servant in that regard, in terms of Rule 13(3) of the Rules. A conjoint reading of Rule 34(3) of the Accounts Rules and sub-section (2)(a)(iii) of the Kerala Panchayat Raj Act, 1994 would make it clear beyond any doubt that irrespective of authorisation from the President of the concerned panchayat, salary and other statutory and mandatory payments under sub-section (2)(a)(iii) of section 213 of the Kerala Panchayat Raj Act shall be made by the Secretary of the concerned panchayat.
13. The position of law with regard to the power of an authority empowered to make recommendation on a particular matter is well settled. Such an authority empowered to make recommendation cannot withhold the original application submitted by the concerned officer and has no option but to forward it to the authority competent to decide the issue involved in that application with or without recommendation. In the circumstances, the contentions of the first and fourth respondents cannot be upheld. The action in withholding the leave application submitted by the petitioner by them was illegal and unjustifiable. The second respondent is the authority competent to grant leave to the petitioner except casual leave. Admittedly, the second respondent acted upon the advance copy submitted by the petitioner and granted leave to her. The second and third respondents, the authorities competent do not have a case that the leave was not properly granted to the petitioner and that she was not posted, subsequently, to Pappinissery Grama Panchayat as Special Grade Secretary. In the said admitted position, Exts.R1(b) and R1(c) show cause notices would fade into insignificance and become inconsequential. Evidently, as per Exts.P7 and P9, the second respondent who is the competent authority, directed the first respondent to take appropriate steps to draw and disburse the leave salary to the petitioner and also to forward her LPC to the concerned panchayat. It is to be noted that the second respondent has specifically mentioned the relevant provisions of law in Ext.P9 to the first respondent so as to enable her to comply with his directions by looking into the legal position. It is also a fact borne out from Ext.P9 that the concerned audit supervisors have also countersigned the salary bills of the petitioner during the relevant period and forwarded to the first respondent. The second respondent had also made it known to the first respondent that leave was duly sanctioned to the petitioner. The first respondent cannot be heard to contend that she is not bound by the lawful directions issued by the second respondent. The action on the part of the first respondent in ignoring the relevant provisions of law despite bringing them to her notice by the second respondent and flouting the lawful directions of the second respondent and even going to the extent of challenging his competence to sanction leave to the petitioner, as can be evident from the portions extracted hereinbefore from the counter affidavit of the first respondent, are not only illegal and deprecative but also invite appropriate action from the part of the competent authorities. The manner in which the first respondent attempted to mislead this Court is contemptuous. It is the first respondent who produced Ext.R1(a) application submitted by the petitioner. A bare perusal of the same would reveal that it is not an application for casual leave. The first respondent still relied on Rule 13(2) of the Rules conveniently ignoring Rule 13(3) thereunder, to contend that the fourth respondent was having authority either to grant or reject Ext.R1(a) leave application. I made the above observation taking note of the subsequent statements of the first respondent in paragraph 6 of the counter affidavit wherein it is stated:- "The second respondent can act only when the application for leave is recommended by the President of a local authority." The said statement of the first respondent would undoubtedly suggest that she was fully aware of the fact that the competent leave sanctioning authority as regards the petitioner is the second respondent. I may also refer to certain other aspects that prompted me to make the above observation. The first respondent has wilfully attempted to canvass the position that the entire leave granted to the petitioner by the second respondent was subsequently cancelled by the third respondent as per Ext.P4 and relied on it to contend that the second respondent has no power to sanction leave. Being an officer who is presently holding the same rank as that of the petitioner, it cannot be believed that the first respondent is absolutely unaware of the authority and power of the second respondent in the matter. It was after perusing Ext.P4 that the first respondent has made such statements in paragraph 10 of the counter affidavit. It is to highlight this aspect that I have extracted the said paragraph hereinbefore. Exts.P4 and P5 are in Malayalam and the first respondent cannot be heard at all to contend that she could not understand the contents thereon properly. Ext.P4 runs as follows:-
12.01.2011 16.04.2011
. . .
(3) .
.
.
(emphasis added)
14. Exts.P4 and P5 would also make the authority of the second respondent, on the subject, beyond any pale of doubt and they would also go to show that what was cancelled is only the unavailed portion of leave of the petitioner. Exts.P4 and P5 would further make it clear that the petitioner was given transfer and posting as special grade Secretary at Pappinissery Grama Panchayat. Copies of Exts.P4 and P5 are marked to the Secretary of Pallikkunnu Grama Panchayat viz., to the first respondent. Even if it is taken that they had not reached the first respondent, the first respondent had obtained copy of this writ petition and that the said documents have also been adverted to by the first respondent in the counter affidavit. Even then, in paragraph 13 of the counter affidavit, the first respondent stated thus:-
"None of the higher officers have intimated the panchayat regarding her transfer till this date". In view of the abovementioned aspects, I have no hesitation to say that the first respondent had taken up such contentions in the counter affidavit only with a view to support the fourth respondent. The said action from her part cannot go unnoticed. The fourth respondent also cannot feign ignorance about the aforementioned relevant provisions such as Rules13(2), 13(3) of the Rules, 34(3) and sub-section (2)(a)(iii) of section 213.
15. I have already extracted paragraphs 2 and 3 of the affidavit sworn in by the fourth respondent-President in this writ petition. The manner in which the fourth respondent replied to the two points mentioned in paragraphs 2 and 4 itself would reveal the attitude of the fourth respondent. On being asked to explain the reason for non-forwarding of LPC, the reply is that himself and the fourth respondent are awaiting orders on Ext.P10. In this context, it is to be noted that the second respondent has already issued clear directions to the first respondent and Ext.P10 is only a letter carrying the request to the third respondent to take appropriate further action in the matter. There is, in fact, no explanation at all for withholding Ext.R1(a) leave application of the petitioner. I have no hesitation to hold that the action on the part of respondents 2 and 3 in ignoring the non-recommendation from the fourth respondent and granting leave to the petitioner taking into account the stage of a female member of the service on miscarriage, as laudable. At any rate, from Exts.P2 to P5 orders, it is evident that at no stretch of imagination, one can say that the petitioner was unauthorisedly absent from duty. The competent leave sanctioning authority in terms of Rule 13(3) of the Rules granted leave to the petitioner and she stayed on leave on the strength of orders from that competent authority. In this context, I have no hesitation to record my displeasure on the action from the part of respondents 1 and 4 and also the manner in which they have treated the petitioner even after coming to know that she had miscarriage. Despite having full knowledge about the legal and factual positions, respondents 1 and 4 have not only made futile attempts to justify their unlawful actions but, even now, keeping that adamant attitude. Though the fourth respondent was not having any authority to reject or allow the application for leave other than for casual leave and no authority to interfere with the disbursement of salary in terms of Rule 34(3) of the Accounts Rules and sub-section (2)(a)(iii) of section 213 of the Kerala Panchayat Raj Act, 1994 the first respondent said to have rejected Ext.R1(a) application for leave and passed an order not to disburse the salary to the petitioner and even after the receipt of Exts.P7 and P9, the first respondent acted upon the said orders passed (said to have been passed but, not produced) without any authority and at the same time, disregarded the lawful orders by the competent authority. It is a fact that, even now, the leave salary due for the aforesaid period is remaining unpaid and the LPC of the petitioner is still to be forwarded to Pappinissery Grama Panchayat. The learned counsel for the petitioner submitted that at the instance of the Local Fund Audit, the petitioner is now, being paid salary in the minimum of the scale of pay attached to the post of Special Grade Secretary and that she is not able to draw salary at the rate to which she is legally entitled to solely because of the non-receipt of her LPC from Pallikkunnu Grama Panchayat. In view of the inherent lack of jurisdiction over the aforesaid aspects viz., in the matters of granting of leave other than casual leave and disbursement of salary, the order, if any, passed by the fourth respondent on such matters would fade into inconsequential as being ab initio void. In view of Exts.P2, P3, P7 and P9, the petitioner is entitled to get leave salary as has been directed to be drawn and disbursed by the second respondent. So also, there is absolutely no reason or authority for the first and the fourth respondents to refuse to forward the Last Pay Certificate of the petitioner to Pappinissery Grama Panchayat. It is taking into account the said circumstances elaborately discussed above that in the opening part of the judgment, I made the observation that vanity and arrogance can have no room in the discharge of official functions and duties. It is quite paradoxical that the petitioner had to meet such treatment at the hands of two ladies holding respectable and responsible positions. The upshot of the discussions is that the petitioner is entitled to the relief sought for. Accordingly, this writ petition is allowed. I have already found that a conjoint reading of Rule 34(3) of the Accounts Rules and sub-section (2)(a)(iii) of section 213 of the Kerala Panchayat Raj Act would make it clear that no authorisation of the President of the Panchayat is necessary for the payment of salary and statutory and mandatory payments under sub-section (2)(a)(iii) of section 213 of the Kerala Panchayat Raj Act to officers and employees of Grama Panchayat. The first respondent is also directed to draw and disburse the salary to the petitioner for the period from 27.12.2010 to 11.1.2011 if not already disbursed, and leave salary from 12.1.2011 to 31.3.2011 for which the competent authorities have already granted sanction as can be seen from Ext.P9 letter of the second respondent. There will be a further direction to the first respondent to forward the Last Pay Certificate of the petitioner to the concerned Grama Panchayat. The aforesaid directions shall be complied with expeditiously, at any rate, within a period of three weeks from the date of receipt of a copy of this judgment. In the totality of circumstances, first respondent shall pay an amount of Rs.10,000/- and the fourth respondent shall pay an amount of Rs.5,000/- towards the costs, to the petitioner. It is made clear that it is the individuals who had sworn in the counter affidavit of the first respondent and the affidavit of the fourth respondent in their respective capacities as the Special Grade Secretary, Pallikkunnu Grama Panchayat and President, Pallikkunnu Grama Panchayat to pay the costs as awarded above and they shall pay the costs as awarded from their own pockets. In case respondents 1 and 4 are not paying the said costs within a period of one month from today, it will be open to the petitioner to take appropriate action for realising the same from them, in accordance with law.