IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 WP(C).No. 27572 of 2007(G) -------------------------------- PETITIONER: -------------- N.G.GEETHA, SELECTION GRADE LECTURER (HOD, RETD) DEPARTMENT OF PHYSICS, S.N COLLEGE, NATTIKA, (CHITHIRA,THALIKULAM P.O.) BY MR.K.B.GANGESH, ADVOCATE. MS.SMITHA CHATHANARAMBATH, ADVOCATE. RESPONDENTS: ------------------ 1. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,THRISSUR. 3. THE ACCOUNTANT GENERAL, OFFICE OF THE ACCOUNT GENERALA ( A & E) THIRUVANANTHAPURAM-39. 4. THE PRINCIPAL, S.N COLLEGE, NATTIKA. BY MR.P.K.MANOMOHANAN, ADVOCATE, FOR R4 MR.K. RAMESH, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27572/2007 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF ORDER DTD. 21.12.1981 ISSUED BY UNIVERSITY OF CALICUT APPROVING THE APPOINTMENT OF THE PETITIONER AS LECTURER AT SN COLLGE, NATTIKA. EXT. P2 : COPY OF CERTIFICATE DTD. 16.12.1996 ISSUED BY PRINCIPAL OF ST. MARY'S COLLEGE, THRISSUR. EXT. P3 : COPY OF SERVICE DETAILS OF PETITIONER AT FISHERIES DEPARTMENT AS ISSUED BY DEPUTY DIRECTOR OF FISHERIES ON 12.12.2003. EXT. P4 : COPY OF LETTER DTD. 21.3.2007 FROM R3. EXT. P5 : COPY OF REPRESENTATION DTD. 9.4.2007 FROM PETITIONER TO R1. EXT. P6 : COPY OF INTIMATION SLIP OF PENSIONARY BENEFITS OF PETITIONER DTD. 18.6.2007 WITH ENCLOSURES. 4TH RESPONDENT'S EXHIBITS: EXT. R4(a) : COPY OF LETTER No.G.V/PEN/223/07 DTD. 1.10.07. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.27572 OF 2007 --------------------------------------- Dated this the 3rd day of July, 2009. J U D G M E N T The petitioner herein retired from service as Selection Grade Lecturer (Head of Department), Department of Physics, S.N.College, Nattika, which is an aided College under the Calicut University. She attained superannuation on 30.04.2007. 2. The petitioner had four months tenure in St.Mary's College, Thrissur from 17.10.1975 to 21.02.1976 as Junior Lecturer in Physics and this is evidenced by Exhibit P2. The petitioner joined the S.N. College, Nattika on 23.02.1980 and Exhibit P1 is the order by which the appointment was approved. The petitioner has got 27 years, 2 months and 8 days of service in the said College. After her first spell of appointment in the St.Mary's College, Thrissur she had also worked as Research Assistant in the Fisheries Department for a period of 4 years from 23.02.1976 to 22.02.1980 out of which 2 months 29 days she W.P.(C) No.27572/2007 2 had taken leave on loss of pay. Therefore, the petitioner had 4 years, 1 month and 7 days of service qualifying for her pension when she joined in the S.N.College, Nattika. Exhibit P3 evidences the said fact. 3. The petitioner submits that the total period liable to be reckoned for pension is 31 years, 3 months and 15 days whereas the 1st respondent admitted only 26 years as per letter dated 20.02.2007, when the proposal forwarded by the Principal was forwarded to the 3rd respondent. The 3rd respondent sought a clarification as per Exhibit P4. The petitioner also filed a representation as per Exhibit P5. By Exhibit P6, the pensionary benefits have been sanctioned wherein the qualifying service is noted as 26 years. The petitioner is aggrieved by the same. 4. The respondents have filed a counter affidavit, mainly contending that the period of service under the Fisheries Department cannot be reckoned as she was terminated from the Department after the Leave Without Allowance sanctioned to her. It is submitted that as per Rule 29(a) of Part III Kerala Service Rules, the resignation of the Public Service or dismissal or W.P.(C) No.27572/2007 3 removal from it entails forfeiture of past service. The matter was taken up with the Government for clarification and the Government by letter dated 24.10.2007 clarified that the period of service in the S.N.College, Nattika alone can be reckoned as qualifying service. 5. Heard the learned counsel for the petitioner and the learned Government Pleader. 6. Learned counsel for the petitioner submitted that Rule 29(a) of Part III K.S.R is not attracted in the facts of this case. The same relates to resignation, dismissal or removal from service. In this case, there is neither resignation nor dismissal or removal from service. The period of service under the Fisheries Department was terminated only to take up employment as Junior Lecturer in S.N.College, Nattika. It is clear from column 7 of Exhibit P3. It is therefore, submitted that the petitioner has not been removed from service to attract the voice of Rule 29(a) of Part III K.S.R. 7. Learned Government Pleader submitted that even if the petitioner's service under the Fisheries Department was W.P.(C) No.27572/2007 4 terminated to join the S.N.College, Nattika, it would come within the meaning of the term 'removal' under the relevant Rule. It is therefore, submitted that the action taken by the respondents is justifiable. 8. Learned counsel for the petitioner has relied upon the decision of a Division Bench of this Court in State of Kerala vs. Kumaraswami (1983 K.L.T. S.N.25). While considering the scope of Article 311(2) of the Constitution of India, a question was considered whether a termination simpliciter will amount to removal. Their Lordship held therein as follows: “..............The courts will examine the order and if it finds that it is a termination simpliciter it will stay its hands from such orders, if, however, on a closer scrutiny it is found that the order in substance represents a penalty imposed on him, then such termination would amount to removal to attract Art. 311(2). This principle cannot apply to the case on hand both on the ground that the respondent is not a civil servant and on the ground that his termination is a termination simpliciter which in substance does not amount to penalty. The order of termination does not on its face show that it was as a penalty..........” W.P.(C) No.27572/2007 5 Therefore, the principle that is evolved therein is to the effect that unless there is a termination by way of penalty, it cannot be termed that there is removal from service as such. The dismissal or removal from service have been specified as separate punishments under the Kerala Civil Services (Classification, Control and Appeal) Rules and such provisions will have to be understood in the light of the power to impose punishments by an employer against an employee. The word 'removal' under Rule 29(a) of Part III K.S.R has therefore, to be construed in the light of the above well settled principles. 9. The three circumstances pointed out in Rule 29(a) of Part III K.S.R are resignation from service, dismissal or removal from it. Therefore, the dismissal and removal requires a conscious action by the employer by way of imposing a penalty after culmination of the disciplinary proceedings initiated in accordance with the relevant provisions. Herein the said contingency is not attracted. The petitioner joined in the S.N. College, Nattika while she was in service of the Fisheries Department and after availing leave without allowance. Merely W.P.(C) No.27572/2007 6 because the tenure in the Fisheries Department was terminated for enabling the petitioner to join the S.N.College, Nattika, it cannot be taken that she was removed from the Department wherein she was working. There is no plea in the counter affidavit that her service was terminated from the Fisheries Department by way of imposing a punishment like dismissal or removal. No materials have been placed on record also, to support the case pleaded that it will come under Rule 29(a). Herein the leave without allowance was granted to join the College itself. Therefore, the dictum laid down by the Division Bench in Kumaraswami's case (supra) will squarely apply to the facts of this case. In that view of the matter, the contentions raised by the respondents in their counter affidavit that Rule 29(a) Part III K.S.R is attracted is not correct. 10. The two spells which require to be reckoned for the purpose of pension are those covered by Exhibits P2 and P3. The first one is for a period of four months as Junior Lecturer in St. Mary's College, Thrissur. It is pointed out by the learned counsel for the petitioner that going by G.O.(P)No.220/87/Fin. W.P.(C) No.27572/2007 7 dated 10.03.1987, persons thrown out from service for want of vacancy, outside from service, retrenchment will count such service in full for pensionary benefits irrespective of length of service prior to 10.01.1978. It is therefore, pointed out that since the period of service in the said College was from 17.10.1975 to 21.02.1976, the said service is liable to be counted. The same will be examined by the 1st respondent. Therefore, the entire matter will be reconsidered. There will be a direction to the 1st respondent to reckon the admissible service which the petitioner was having with the Fisheries Department for the purpose of pensionary benefits. The eligibility for the first spell of appointment in the St.Mary's College, Thrissur will also be examined as directed already. Appropriate final orders shall be passed within a period of two months from the date of receipt of a copy of this judgment and the eligible benefits will also be disbursed accordingly. This writ petition is allowed as above. T.R. RAMACHANDRAN NAIR JUDGE smp