IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 3RD JULY 2008 / 12TH ASHADHA 1930 WP(C).No. 17496 of 2008(G) PETITIONER: ---------------------- PACHATH CHENTHAMARAKSHAN NAIR, AGED 67, NOW RESIDING AT SOPANAM, VRA 121A, VIVEKANANDAPURAM, TRIVANDRUM-05. BY ADV. SRI.PACHATHE CHENTHAMARAKSHAN NAIR(PARTY) RESPONDENTS: ----------------------- RAGHU MENON, CHAIRMAN AND MANAGING DIRECTOR, NATIONAL AVIATION COMPANY OF INDIA LTD., AIRLINES HOUSE, 113 GURUDWARA RAKHAB GUNJ ROAD, NEW DELHI-110001. BY ADV. SRI.GEORGE POONTHOTTOM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. GIRI, J. ------------------------------- WP(C).NO. 17496 of 2008 --------------------------------- Dated this the 3rd day of July, 2008. JUDGMENT The writ petition is filed by a party in person. In the circumstances the following order was passed on 16.6.2008: “ In the first instance, though I was inclined to reject the writ petition at the threshold, as the petitioner had already withdrawn WPC.No.9774/2008 filed on the same cause of action, I think it is necessary to consider the petitioner's grievance in further detail. In the circumstances, it is necessary that the petitioner is made available the services of a senior and experienced advocate. I requested Sri.George Poonthottam whether he can act on behalf of the petitioner in this regard. He has graciously accepted the request. Petitioner shall make available a copy of the writ petition to Sri.George Poonthottam. Standing Counsel for the Air India shall make available the copies of earlier judgments and any other materials as are deemed necessary and appropriate by Sri.George Poonthottam. “ WPC. 17496/2008 2 2. Accordingly, Sri.George Poonthottam made submissions on behalf of the petitioner on 30.6.2008. Copy of the paper book that was made available by the counsel for the respondent has also been perused, since the petitioner has not produced the previous papers relating to the earlier writ petitions filed by the petitioner. I thought it appropriate that the petitioner should not feel that he has been non suited with a feeling that this court had not bestowed sufficient attention in dealing with his case. Therefore, reference was made to the earlier litigation in an attempt to find out whether it would be justified in entertaining the present writ petition. The petitioner joined the services of Air India Corporation as a Stenographer on 1.4.1964 and after being promoted as Personal Assistant to Deputy Director of Operations with effect from 1.9.1969 he was transferred to Hong Kong by order dated 1.8.1972 and posted at the office of the Deputy Director of Operations. It seems that the petitioner thought it appropriate to secure a position with Air India on terms applicable to persons employed in Hong Kong. According to the petitioner, by letter dated 15.12.1972 the petitioner expressed his willingness WPC. 17496/2008 3 to resign from the service of the Corporation with effect from 7.2.1973. He later requested that his resignation be accepted with effect from 8.1.1973 itself and by letter dated 29.1.1973 the petitioner's resignation was accepted with effect from 8.1.1973. In the meanwhile, by letter dated 9.1.1973 the petitioner was appointed on local terms at Hong Kong. It seems that the petitioner continued in Hong Kong till 20.11.1974. Thereafter he requested for a transfer to Australia. The petitioner could not be transferred to Australia because he had been locally recruited in Hong Kong. Since the petitioner had already severed connection with the Air India Corporation in India and since the petitioner was not transferred to Australia, he resigned the post at Hong Kong and thereafter he was employed in Australia by Air India Office at Perth. The petitioner was confirmed at Perth from 21.5.1975 as a locally employed person and he continued at Australia till 21.2.1978. He resigned from Australia as his visa was not extended. Since the petitioner had left Australia, Air India offered fresh employment in India. On 23.12.1978 he accepted the post of Traffic Assistant at Trivandrum. WPC. 17496/2008 4 3. Apparently dissatisfied with the decision of the Air India to treat him as a fresh entrant, the petitioner approached this court in OP.NO.2670/1978. The petitioner's contention was rejected. Paragraphs 2,4 and 5 of the said judgment are extracted hereunder: “ 2. The petitioner is a very unhappy person. It is only natural that he is unhappy because he finds himself in a plight for which he himself is to blame. When he relinquished his India based post of Personal Assistant he knew or ought to have known the consequences. He knowingly and willingly accepted the post on 'local terms' carrying with it all benefits as well as constraints. He who plucks the roses must also accept the thorns. The thorns now cause pain in his flesh. Air India cannot help him. 4. The petitioner's counsel in his able argument tried to show that the petitioner's resignation was only on paper and it was not intended to be effective. He contended that the petitioner resigned the post upon the advice of his employer so that he could be recruited on local terms. Such argument, if valid, would be helpful to the petitioner. But unfortunately for WPC. 17496/2008 5 the petitioner, there is nothing on record to justify that line of argument. I am satisfied beyond doubt that the petitioner willingly submitted Exts.R2 and R3 letters of resignation on his own free will and that there was no manner of pressure brought to bear upon him by his employer. I am also satisfied that the petitioner resigned his post at Hong Kong to go to Australia upon his own free will and that his employer had in no manner induced him to do so. I am also satisfied that Air India would have willingly continued his employment on 'local terms' in Australia had it been possible for the petitioner to remain in Australia. He was forced to leave Australia because he had no visa. That was totally beyond the control of Air India. 5. The petitioner lost all his rights in regard to the post of P.A. when he submitted Exts.R2 and R3 letters of resignation. He had no further claim on that post. His fresh employment as an India based employee gave him no benefit on the basis of past service. In the circumstances the OP is dismissed. No costs.” 4. The judgment in OP.No.2670/1978 was taken in appeal WPC. 17496/2008 6 as WA.No.474/1982. The appeal was dismissed. The petitioner continued in service. Apparently thereafter in 1999 he filed another writ petition OP.No.4659/1999 with a prayer that his past service as Secretary when he was serving in Australia from 21.11.1974 should also be taken into account and be treated as service and he should not be considered as a new employee of Air India with effect from 1.4.1978. This court rejected the contention of the petitioner by judgment dated 11.1.2000 essentially on the basis that the judgments in OP.No.2670/78 and WA.No.474/1982 stand in the way of considering his claim. The petitioner preferred an appeal against the judgment in OP.No.4659/1999 as WA No. 587/2000. The petitioner's contentions were referred to in detail and the Division Bench held that the petitioner cannot be permitted to reagitate his claim. Subsequently, the petitioner retired from service on 30.4.2000. After the petitioner retired from service, he again approached this court in OP.No.11776/2001 with a prayer that his pensionary benefits be computed for his entire service from 1.4.1964 onwards. This was again rejected by this court by judgment dated 27.2.2002 Apparently after a gap of about three WPC. 17496/2008 7 years the petitioner filed a fresh writ petition as WPC.11257/2005 for a direction to the respondent to find out the actual amount of superannuation benefits due to him including Provident Fund or superannuation fund deducted or ought to have been deducted and pay the remaining amount. This prayer was also made on the basis of the contention that the petitioner is entitled to continue to count the service from 1.4.1964 to 30.4.2000. The said writ petition was also dismissed and the judgment was affirmed by the Division Bench in WA.No.2011/2006. 5. He again approached this court with a fresh writ petition as WPC.No.9774/2007. On 17.1.2008 this court noted that the petitioner's claim is not sustainable. Since the petitioner sought for withdrawing the said writ petition, the same was dismissed as withdrawn. No liberty as such was granted to the petitioner. After a gap of five months the petitioner has again approached this court essentially for a direction to the respondent to give continuity of service and consequential service benefits. 6. The petitioner had already withdrawn WPC.No.9774/2008. But in the interest of justice, taking note of WPC. 17496/2008 8 the fact that the last three writ petitions and appeals were filed by the petitioner in person, I thought that the petitioner should be made available the services of a senior and experienced counsel. I requested the counsel to go through the papers independently and make submissions as to whether the writ petition is maintainable. 7. I heard learned counsel Sri.George Poonthottam and the learned counsel for the respondent. It is clear that the petitioner's claim for treating the service rendered by him both in Hong Kong and Australia as part of the services with the Air India for the purpose of computation of retirement benefits is clearly barred. I had requested Sri.George Poonthottam to assist the court only with a view to enable the petitioner to get a service of an experienced counsel so that he may not leave portals of this court with a feeling that his case was not fully considered on merits. I have referred to the earlier litigations in detail with a view to demonstrate that the petitioner's claim now sought to be urged in this writ petition has been dealt with by this court earlier on more than one occasion. If he make any further attempts, this court would be constrained to invoke it's plenary WPC. 17496/2008 9 powers to restrain him from doing so. For all these reasons, I find that the writ petition is bereft of merit. Hence the same is dismissed. I place on record the appreciation of this court for the time and effort taken by Sri.George Poonthottam in arguing the case on behalf of the petitioner. V. GIRI, JUDGE. Pmn/