IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 10TH MARCH 2011 / 19TH PHALGUNA 1932 WA.No. 88 of 2010() ------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.25961/2007 Dated 22/07/2009 .................... APPELLANT(S): RESPONDENTS 1 & 2 IN THE WP(C) ------------------------------------------------------------------------- 1. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 2. THE DISTRICT MEDICAL OFFICER, PAINAVU, IDUKKI. BY SR. GOVERNMENT PLEADER SRI.BENNY GERVASIS RESPONDENT(S): PETITIONER ------------------------------------------- K.M.KUNJU KANI, S/O.LATE MOIDEEN RAWTHER, KANDAMKULATHU KARINILAM.P.O, PULIKUNNU VIA, MUNDAKKAYAM, KOTTAYAM DISTRICT. ADV. SRI.P.K.IBRAHIM THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. =============================== W.A. NO. 88 OF 2010 =================== Dated this the 10th day of March, 2011 J U D G M E N T J.Chelameswar, C.J. The appeal is preferred by the State aggrieved by judgment dated 22nd of July, 2009 in WP(C) No.25961/07. The appellants are the officers of the State of Kerala representing the State. The sole respondent was an employee of the State, who was initially appointed as Part Time Helper on daily wage basis and subsequently promoted as a Hospital Attendant Grade II, the further details in this regard are not necessary. 2. The service of the respondent was terminated initially by proceedings dated 14/12/92 on the allegation that the respondent secured employment on the strength of certain documents whose authenticity was disputed by the State. Aggrieved by the order of termination, the respondent approached this Court in OP No.1477/93, which was allowed by judgment dated 9/3/1993 on the ground that the termination order was not preceded by an appropriate enquiry in accordance with law. WA No.88/2010 : 2 : 3. In view of the above mentioned judgment, a fresh enquiry was instituted against the respondent, which culminated again in an order of dismissal dated 25/5/99, which was in turn challenged again in OP No.14840/99. The said original petition stood allowed by judgment dated 11/11/2003. Once again, this Court held that the enquiry which preceded the termination order was not held as per the rules thereby rendering the order of termination illegal. However, in view of the fact that the respondent had already retired by the date of the judgment, the Court opined that, there was no point in permitting the employer to conduct a fresh enquiry. The operative portion of the order reads as follows:- “It is submitted that the petitioner has retired from service on 30/4/2002. As already noted above there is no enquiry as per the rules inspite of the observations made by this court in Ext.P7 judgment. Now that the petitioner has already retired from service, there is no point in conducting the enquiry also. Therefore, I set aside the impugned orders. It is declared that the petitioner shall be deemed to have duly retired from service and the pensionary benefits shall be settled accordingly. Appropriate action in accordance with law for settling the pensionary benefits shall be taken within a period of three months from the date of production of a copy of this judgment by the petitioner. In the event of delay, petitioner will be WA No.88/2010 : 3 : entitled to get interest at the rate of 12% from 1.5.2003 and the officers responsible for the delay shall be personally liable for the interest”. 4. It can be seen from the above extracted portion that the pensionary benefits due to the respondent was directed to be settled within a period of three months from the date of production of a copy of the judgment on the further condition that any delay in the settlement of the pensionary benefits beyond the permissible period would entail interest at the rate of 12%. 5. Eventually, pensionary benefits as computed by the employer were paid to the respondent on 8/6/2004 and 25/6/2004. Obviously, the said payments were beyond the period permitted by the above mentioned judgment. Therefore, the respondent approached this Court by initiating contempt proceedings in COC No.423/04. The said contempt case came to be closed by a short judgment, which reads as follows:- “Even the affidavit dated 30/6/2004 is not satisfactory. However, the deponent cannot be fully blamed since it is submitted that the affidavit was settled by the Government Pleader. The 2nd respondent is present. He tenders unconditional apology for the delay caused and in not having filed a petition for extension of time. It is submitted that he has already taken up the matter before the Government regarding the payment of interest. There will be a direction to the respondent to follow up the WA No.88/2010 : 4 : matter and see that the petitioner is paid the interest granted in the judgment within a period of four months from today. In view of the apology tendered further proceedings in the CCC is dropped and the CCC is closed”. 6. Thereafter, the respondent believed that he is entitled for pensionary benefit to be computed by taking into account the 'increments' and 'promotions' in the service which are allegedly due to him. He therefore made a representation dated 9/7/05 to the appellants herein, praying for revision of the pensionary benefits, which representation was rejected by communication dated 10/10/2006. 7. The respondent once again filed another COC No.183/07 aggrieved by the above mentioned communication dated 10/10/2006. The said contempt case also was closed. The operative portion of the judgment reads as follows:- “After hearing Mr.P.K.Ibrahim, learned counsel appearing for the petitioner and after going through the pleadings of the parties and the communication issued by the respondent to the petitioner, we are of the opinion that the respondents have not either wilfully or deliberately disobeyed the orders and directions issued by this Court. Therefore, we are not prepared to take cognizance of this contempt petition. Accordingly, the proceedings are dropped. However, liberty is reserved to the petitioner, if he so desires, to question the correctness or otherwise of the order passed by the Government dated WA No.88/2010 : 5 : 23.3.2005 and the order dated 28.6.2007 issued by the first respondent”. 8. It can be seen from the above extract that while closing the contempt case, a Division Bench of this Court reserved the liberty of the respondent to question the correctness or otherwise of the orders passed by the Government on 23/3/2005 and 28/6/07. Hence the respondent filed WP(C) No.25961/07 impugning the order dated 28/6/2007. The relevant portion of the order dated 28/6/2007 reads as follows:- “The Hon'ble High Court of Kerala as per the judgment dated 11/11/2003 in OP No.14840 of 1999 as confirmed by the Division Bench in the judgment dated 10.02.2005 in WA No.193 of 2005 had declared that since you retired from service there is no point in conducting inquiry. The Hon'ble High Court had further declared that you shall be deemed to have duly retired from service and that your pensionary benefits shall be settled accordingly. The letter referred 1 above is seen issued to you without taking note of the said judgments. And you have initiated contempt of Court proceedings referred to 2 above, which is pending. In such circumstances, the said letter No.A5-4112/06 dated 10/10/2006 issued to you is hereby recalled and it is ordered as follows:- 1. All further proceedings in pursuance to the letter No.A5.4112/06 dated 10.10.2006 initiated by this office are hereby dropped. 2. You are not entitled to any further service benefits on your retirement. WA No.88/2010 : 6 : 3. This letter is issued without prejudice to the proceedings by the Vigilance and Anti Corruption Bureau pending against you”. 9. Two facts require to be noticed from the said order. One is that, it is averred that there is a Vigilance and Anti Corruption Bureau case pending against the respondent, neither the details of such case or any specification as to the nature of the case is specified. The second factor is that there is a categoric assertion that the respondent “is not entitled for any further service benefits” and it is not very clear from the said assertion what the author of the letter meant. The representation filed as Ext.P3 in the instant writ petition also is very vague regarding the service benefits, which the respondent claims. The only statement in this regard is as follows:- “The department however while granting the Pensionary benefits did not fix my scale taking into account the various increments due and even the promotion despite the fact that the Hon'ble High Court directed to grant all benefits treating as if I was in service.” 10. Except bald assertion that the various “increments due and even the promotion”, the respondent does not specify what is his entitlement for such increments and promotions. It is not very clear from the record whether the service to which the respondent WA No.88/2010 : 7 : belonged to is governed by any rules or law made by the State, nor did the appellants make any specific order regarding such a claim. 11. By the judgment under appeal, the learned Judge disposed of the writ petition. The operative portion of the judgment reads as follows:- “In view of Ext.P1 judgment, respondents cannot be heard to contend that the petitioner is not entitled to increments and promotions. The result of Ext.P1 judgment is that the petitioner should be deemed to have continued in service without any disciplinary proceedings and retired accordingly. That being so, the petitioner is entitled to all service benefits for the entire period of his service, including increments whenever it became due as also promotions whenever it became due. The respondents cannot deny to the petitioner those benefits. Therefore the petitioner's pay has to be refixed taking into account the increments and promotions due to him. Consequentially, the petitioner's retirement benefits are also liable to be recomputed on the basis of his revised fixation of pay, taking into account, the increments and promotions which were due to him as held above. Orders in this regard shall be issued and the arrears of pay and retirement benefits shall be disbursed to the petitioner, as expeditiously as possible, at any rate, within three months from the date of receipt of copy of this judgment”. 12. The direction in our opinion depends on number of uncertain factors which cannot be verified on the material on WA No.88/2010 : 8 : record. In the circumstances, we are of the opinion that the appeal is required to be allowed setting aside the judgment. However, in our opinion the ends of justice require that the appellants be directed to pass a reasoned order after giving an opportunity to the respondent specifying whether under the conditions of service applicable to the respondent, the respondent (if at all) was entitled to any increments or promotions. If so entitled under what circumstances and subject to what conditions such increments or promotions could be awarded. On such determination, take an appropriate decision in accordance with law. If the respondent is to be granted any increments or notional promotions, compute his retirement benefits in accordance with the conclusions reached and communicate the same to the respondent within a period of three months. Writ appeal is allowed as indicated above. J.CHELAMESWAR CHIEF JUSTICE. ANTONY DOMINIC Rp JUDGE.