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2025 Supreme(Ker) 895
IN THE HIGH COURT OF KERALA AT ERNAKULAM
AMIT RAWAL, K. V. JAYAKUMAR, JJ.
Sabu Varghese - Appellant
Versus
The Cochin Port Trust - Respondents
WA NO. 2513 of 2018
Decided on : 04-02-2025
Advocate Appeared:
For the Appellant : BY ADVS. S.SHYAM N.K.KARNIS KIRAN PETER KURIAKOSE VINAY KUMAR VARMA
For the Respondent: BY ADVS. SMT.LATHA ANAND SRI.M.N.RADHAKRISHNA MENON
IMPORTANT POINT
Retrospective cancellation of sanctioned leave without a hearing violates natural justice principles, rendering such actions unjust and arbitrary.
Headnote:
(A) Cochin Port Employees (Leave) Regulations, 1978 - Clause 28 - Fundamental Rules - Rule 26 - Leave granted was recalled without affording opportunity of hearing, violating principles of natural justice - Cancellation of leave retrospectively is unjust and arbitrary - The court emphasized that leave once sanctioned cannot be varied to the detriment of the employee without a hearing. (Paras 2 , 6 )
(B) Natural Justice - The principles of natural justice must be adhered to in administrative actions affecting employee rights - Non-compliance renders actions unjust and irrational. (Paras 6 )
(C) Estoppel - The doctrine of estoppel applies when an error in leave sanction is attempted to be rectified without proper procedures. (Paras 6 )
Facts of the case:
The appellant challenged the cancellation of leave and withholding of increments, arguing that the cancellation was done without proper notice or opportunity to be heard. The Single Bench dismissed the writ petition, leading to this appeal.
Findings of Court:
The court found that the Single Bench's dismissal was flawed due to the lack of natural justice, and the decision to withhold increments was set aside.
Issues: The main issues were whether the leave could be cancelled retrospectively without a hearing and the implications of such actions on employee rights.
Ratio Decidendi: The court ruled that retrospective cancellation of leave without a hearing violates natural justice principles and is thus null and void.
Result: Writ appeal allowed; respondents directed to refund the amounts deducted.
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. 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) Tuberculo
