IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 WP(C).No. 17808 of 2007(T) ----------------------------------------- PETITIONER: ---------------------- V.REVI, RETIRED DRIVER FROM K.S.E.B, AJI NIVAS, ANCHUVILAPURAM, CHANDANATHOPPE P.O., KOLLAM. BY ADV. SRI.B.MOHANLAL RESPONDENTS: -------------------------- 1. THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, EAST FORT, REPRESENTED BY ITS MANAGING DIRECTOR, THIRUVANANTHAPURAM. 2. THE SECRETARY, KERALA STATE ELCTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM PALACE, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM PALACE, THIRUVANANTHAPURAM. ADV.SRI.JOHNSON P.JOHN, SC, KSRTC- R1 SRI.K.S.ANIL, SC, KSEB FOR R2-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON 26/08/2008 DELIVERED THE FOLLOWING: Kss WPC.NO.17808/2007 T APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER NO.PA.VIII/PPO.33592 DTD.20/04/2005 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P2: COPY OF THE REPRESENTATION DTD. 31/08/2005 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P3; COPY OF THE POSTAL RECEIPTS AND EVIDENCING THE RECEIPT OF EXT.P2. EXT.P4: COPY OF THE G.O.(P) NO.383/89/FIN. DTD. 04/06/1990. EXT.P5: COPY OF THE CIRCULAR NO.38/90/37/FIN. DTD. 04/06/1990. EXT.P6: COPY OF THE G.O.(P) NO.703/02/FIN. DTD. 12/11/2002. EXT.P7: COPY OF THE G.O.(P) NO.1288/00/FIN. DTD. 04/01/2000. EXT.P8: COPY OF THE REPRESENTATION DTD. 07/03/2005 FILED BY THE PETITIONER BEFORE THE RESPONDENTS 2 & 3. EXT.P9: COPY OF THE JUDGMENT IN WP(C) NO.35992/2005 DTD. 26/03/2007 OF THIS HON'BLE HIGH COURT OF KERALA. EXT.P10: COPY OF THE ORDER NO.IAS III/18186/2005 DTD. 09/04/2007 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P11: COPY OF THE NOTICE NO.PL14/000245/2006 DTD. 27/07/2007 ISSUED BY K.S.R.T.C. TO THE PETITIONER. EXT.P12: COPY OF THE RESIGNATION LETTER DTD. 07/12/1994 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R2(A): COPY OF THE BOARD ORDER NO.2574/05 DTD. 1/09/2005. EXT.R2(B): COPY OF G.O.NO.577/83 DTD. 12/09/1983. /TRUE COPY/ Kss P.S.TO JUDGE V. GIRI, J. ------------------------------- WP(C).NO. 17808 of 2007 --------------------------------- Dated this the 26th day of August, 2008. JUDGMENT The petitioner retired as a Driver from the KSEB, the second respondent herein on 1.3.2005. He is aggrieved by the computation of his pensionary benefits in as much as that the Board has taken into account only the service rendered by him as a driver of the KSEB with effect from 8.12.1994 till the date of retirement. The petitioner had earlier entered service in the KSRTC on 16.6.1981 as a Driver and had rendered service therein for a period of 13 years, three months and 29 days from 16.6.1981 to 14.10.1994. His request for computation of his terminal benefits by taking into account his period of service in the KSRTC also has not been accepted by the KSEB and hence this writ petition. There is also a challenge against the stand taken by the KSRTC declining to release the balance amount due to the petitioner by way of DCRG on the premise that the petitioner is responsible for damages to the tune of Rs.24,420/- incurred by the KSRTC in connection with an accident that took WPC.17808 /2007 2 place on 15.9.1994 when the petitioner was in the service of the KSRTC. 2. As stated above, essentially the dispute in the writ petition relates to the question as to whether the KSEB is bound to take into account the service rendered by the petitioner as a Driver of the KSRTC also in computing the terminal benefits due to the petitioner. The petitioner refers to Ext.P4 Government order. It provides that when an employee of the State Government/State Autonomous body borne on pensionable establishment, is allowed to be absorbed in the Government of India/Autonomous body, the service rendered by him under the State Government/State Autonomous body shall be allowed to be counted towards pension under the Government of India/ Autonomous body. The same procedure will be applied in the case of employees of Government of India/ Autonomous bodies who are permanently absorbed under the State Government/State Autonomous bodies. Reference is also made to Ext.P6 Government order. The petitioner's request in this regard under Ext.P8 was directed to be considered by this court under Ext.P9 judgment. The claim was rejected under Ext.P10 order WPC.17808 /2007 3 dated 30.4.2007. The operative portion of Ext.P10 reads as follows:- “As per G.O.(P).No.577/83/Fin dated, Thiruvananthapuram 12.9.1983, the service as determined at the time of preliminary verification shall be treated as final. The service so determined shall not be reopened, except when necessitated by subsequent changes in the rules. In the case of Board employees the qualifying service should be got approved by Accounts Officer (Pension Authorisation/Pension sanction) well in advance of the date of retirement. (On verification of the application of Pension/DCRG by the petitioner , Sri. V.Ravi, it is seen that he has not even claimed his prior service rendered in KSRTC for pensionary benefits (item No.10(b): Any other addition to qualifying service). Moreover, the service records of the petitioner with KSRTC is not available in his pension file. As per the Board order read as paper 2nd above, the prior service rendered by the Board employees in the Kerala State Public WPC.17808 /2007 4 Sector Undertakings/Autonomous bodies for the purpose of pension in KSEB can be counted only subject to realisation of pro-rata pension liability from the Kerala State Public Sector Undertaking/Autonomous Bodies. In the above circumstances Board has decided to decline the request of the petitioner to reckon his service in KSRTC for pensionary benefits. Ext.P8 representation of the petitioner is disposed of accordingly in compliance of the judgment direction in WPC.No.35992/2005.” 3. The Board order in the second paper in Ext.P10 order is the Board order dated 1.9.2005 which has been produced by the Electricity Board along with its counter affidavit as Ext.R2(a). Clause (3) of Ext.R2(a) Board order reads as follows:- “ Count the past service rendered by the Board employees in the Kerala State Public Sector Undertaking/Autonomous bodies for the purpose of pension in the Board, subject to realisation of the pro-rata pension liability from the Kerala Public Sector Undertaking/Autonomous bodies.” 4. As per clause (4) of the said order a time limit of one year from 1.9.2005 will be allowed to the existing employees to WPC.17808 /2007 5 apply for counting the past service for the purpose of pension. It is pointed out by the petitioner that even in terms of Ext.R2 (a) Board order the petitioner is entitled to get his earlier service in the KSRTC reckoned for the purpose of determining his pensionary benefits. 5. Counter affidavits have been filed by the KSEB as also the KSRTC. In the counter affidavit filed by the KSEB reference is made to Ext.R2(a) Board order. It is contended that in terms of the said Board order the employee should have submitted a request to the competent authority for reckoning his prior KSRTC service for pensionary benefits while in service or at the time of retirement. This was not done. Reference is also made to Ext.R2 (b) order which apparently has been adopted by the Board in which it is provided that the service as determined at the time of preliminary verification shall be treated as final and shall not be permitted to be reopened. It is contended that since the petitioner had not claimed prior KSRTC service as reckonable as part of his service in the Board while he was in service or at the time of his retirement, his request does not merit any consideration. WPC.17808 /2007 6 6. In the counter affidavit filed by the KSRTC it is contended that the petitioner was absorbed as Driver Grade II with effect from 18.5.1990 that he had rendered regular service as a Reserve Driver pursuant to the advice of the PSC dated 22.4.1989. The regular service of the petitioner can be counted for pension only with effect from 5.6.1989. The KSRTC has raised a dispute as to whether the petitioner resigned from service or whether he simply went out of service without being properly relieved in that regard. According to the KSRGC the petitioner did not submit any proper letter of resignation. He simply absented from duty. This aspect was informed to the petitioner vide letter dated 27.7.2007. 7. I heard learned counsel for the petitioner Sri.B.Mohan Lal, learned senior Standing Counsel for the KSEB Sri.Asok M.Cheriyan and the learned Standing Counsel for the KSRTC Sri.Johnson P John. Admittedly the petitioner had retired from the service of KSEB on superannuation with effect from 1.3.2005. Ext.P2 representation was submitted by him on 31.8.2005. He has made a request for counting his service in the KSRTC also for determining his terminal benefits. Ext.R2(a) Board Order is WPC.17808 /2007 7 dated 1.9.2005. It provides that a time limit of one year in the case of existing employees for making a request for counting the past service. Ext.R2(a) Board order reflects the decision on the part of the Board not to reopen the case settled in the past otherwise than in the manner provided in Ext.R2(b) and also to regularise the pending cases as per the guidelines contained in Ext.R2(a). In my view, even going by Ext.R2(a) order the petitioner's case would be comprehended thereby and the request made by the petitioner vide Ext.P2 dated 31.8.2005 for counting his past service in the KSRTC also should be treated as comprehended by in Ext.R2(a) Board order. It is not the case of the KSEB that the petitioner's case is liable to be treated as settled one in terms of Ext.R2(a) Board order and therefore the embargo on reopening of settled cases would not apply to the case of the petitioner. 8. One another objection which is taken by the KSEB as regards the case of the petitioner is that he had not sought to reckon the prior service in the KSRTC to be treated as part of the pensionable service, at any point of time while he was in service or at the time of his retirement as such. In my view this may not WPC.17808 /2007 8 really make any difference as regards the entitlement of the petitioner. This is especially so, since the right if treated as available to the petitioner and similarly situated persons to reckon their prior service for determining the terminal benefits as flowing out of Ext.R2(a), then it cannot be said that such right should be treated as forfeited merely because the petitioner had not made a request while in service or at the time when he joined service. The petitioner retired from service prior to the date of Ext.R2(a) and as I have found above, the petitioner's case should be treated as a pending case in terms of Ext.R2(a) order and is therefore eligible to be dealt with in such a fashion. 9. The objection taken by the KSRTC to grant pensionary benefits due to the petitioner is essentially that the petitioner went out of service. A reading of Ext.P11 order would show that according to the KSRTC he had left the service of the Corporation without submitting a resignation letter. According to the Corporation they can consider the petitioner's request for terminal benefits only if the petitioner submits a resignation letter in the prescribed proforma and he clears the liability outstanding against him including the damages to the tune of WPC.17808 /2007 9 Rs.24,420/-. It is difficult to accept the stand taken by the Corporation in Ext.P11. Firstly, the petitioner had left the service of the Corporation only to join the KSEB and in the circumstances even going by Rule 29 of Part III of KSR the same may not entail a forfeiture of past service. But I am not pronouncing on this aspect finally as it is not necessary to do so in the facts and circumstances of the case. This is so because according to the KSRTC there has been no proper resignation by the petitioner and at this distance of time it would not be quite justified to require the Corporation to treat the petitioner's service in the Corporation as forfeited in its entirety. Thus while leaving open the question of applicability of Rule 29 of Part III of KSR, I make it clear that the Corporation shall reconsider the case of the petitioner. It shall proceed to disburse to the petitioner the retirement benefits due to him without insisting on the recovery of any amount by way of damages or liability and this shall be done within two months from the date of receipt of a copy of this judgment If any amounts are to be remitted to the KSEB for satisfying the pro-rata liability incurred by the KSRTC in this regard, for the purpose of computing the petitioner's terminal WPC.17808 /2007 10 benefits in terms of Ext.P4 Government order as also Ext.R2(a) Board order, then such remittance shall be made by the KSRTC with the KSEB within the aforementioned period. 10. The stipulation in Ext.P11 that the petitioner should clear the liability with the KSRTC for the purpose of processing his request for terminal benefits, in my view is unfair considering the fact that the petitioner left the services of the Corporation as early as in 1990 and the Corporation had not at any point of time initiated any proceedings against the petitioner for unauthorised absence as such. In fact, there is an ambivalence in the stand taken by the Corporation. On one hand they say that the petitioner had not submitted a proper resignation at any point of time, on the other they say that his past service must be treated as forfeited in view of his resignation under Rule 29 of Part III of KSR. 11. For all these reasons, I am of the view that the petitioner is entitled to succeed. Ext.P10 and P11 are quashed to the extent indicated above. The KSRTC is directed to release the terminal benefits due to the petitioner relatable to his service rendered by him as Driver in the KSRTC with effect from 5.6.1989 WPC.17808 /2007 11 till 14.9.1994 (going by Ext.P11 communication issued by the Corporation). If amounts are to be remitted in this regard to the KSEB, this shall be done within two months from the date of receipt of a copy of this judgment. On such amount being remitted by the KSRTC, steps shall be taken by the second respondent Board to recompute the terminal benefits due to the petitioner by reckoning the service rendered by the petitioner in the KSRTC (as certified by the KSRTC) as part of the qualifying service of the petitioner for the purpose of his terminal benefits. Further amounts due to the petitioner shall be disbursed within two months from the date on which the KSRTC remits the amount in terms of the direction issued above. The petitioner's pension shall be suitably revised and revised pension shall be paid with effect from the date on which he was found to be eligible for pension. Arrears in this regard shall be paid within three months from the date on which the KSRTC remits the amount to the KSEB. The writ petition is allowed as above. V. GIRI, JUDGE. Pmn/ WPC.17808 /2007 12