IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 WP(C).No. 37752 of 2007(T) -------------------------- PETITIONER(S): --------------- P. SUNDARI BHAI (W/O.LATE J.JUSTUS, CONDUCTOR, KSRTC, ALUVA, EXPIRED ON 22-01-2002), VARUTHATTUVILA VEEDU, PONNAMBI, VELLARADA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.K.P.RAJEEVAN SMT.A.R.DEVI RESPONDENT(S): --------------- 1. KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM. 2. THE DISTRICT TRANSPORT OFFICER, K.S.R.T.C., ALUVA. SHRI.JOHNSON P.JOHN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.12.2008, THE COURT 5.1.2009 DELIVERED THE FOLLOWING: W.P.(C).No. 37752/07. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE DEATH CERTIFICATE. P2. COPY OF THE HEIRSHIP CERTIFICATE. P3. COPY OF THE MEMORANDUM DTD.25.6.03. BEFORE R2. P4. COPY OF THE MEMORANDUM DTD.24.4.06 BY R1 TO THE PETITIONER. RESPONDENT(S)' EXHIBITS: R1A. COPY OF THE BOARD DECISION DTD.1.2.03. B. COPY OF THE MEMO DTD.28.2.03. C. COPY OF THE ORDER DTD.22.5.99 IN O.P(ELECTION) NO.111/95. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 37752 of 2007 ================== Dated this the 5th day of January, 2009 J U D G M E N T This writ petition is filed by the widow of a deceased employee of the Kerala State Road Transport Corporation seeking the following reliefs: “i) Call for the records leading to this case and issue a writ of certiorari quashing Exhibit P4. ii) Declare that the husband of the petitioner is expired while in service and legal heirs are entitled for all service benefits including family pension and appointment under dying in harness scheme. iii) Issue a writ of mandamus or any appropriate writ or order directing the respondents to sanction and disburse family pension, Provident Fund, Staff Welfare Fund and all other benefits including appointment under dying in harness scheme to the petitioner and her family.” 2. J.Justus, the late husband of the petitioner, entered the service of the KSRTC on 19.1.1979. According to the petitioner, he continued in service till 22.1.2002, on which date he died. The petitioner's grievance is that terminal benefits due to her husband and family pension due to the petitioner, are not being paid to the petitioner on the ground that J.Justus resigned from the service of the Corporation on 18.8.1995, which was accepted on 1.2.2003. Petitioner's contention is that since the w.p.c.37752/07 2 alleged acceptance of resignation was after the death of her husband, it has no legal validity and therefore, terminal benefits and family pension due to the legal heirs of late J.Justus cannot be denied to them on the ground that the resignation of the petitioner's husband submitted prior to his death had been accepted after his death. The petitioner also relies on the decision of James Mathew v. Cement Corporation of India Ltd. [ILR 1997 (3) Kerala 151] in support of her contention that resignation takes effect only from the date of acceptance of the same. 3. A counter affidavit has been submitted on behalf of the respondents refuting the contentions of the petitioner. According to them, J.Justus submitted his resignation letter dated 18.8.1995 on 23.8.1995. He filed nomination for contesting Panchayat election held on 23.5.1995. Since in the resignation letter Justus had claimed retirement benefits also vide memo dated 21.11.1995, he was asked whether he would like resignation or invalid pension. Justus submitted an application for invalid pension on 12.10.1995 opting for invalid pension with effect from 19.9.1995. In the meanwhile, Justus was elected to w.p.c.37752/07 3 the Panchayat Committee and the opposing candidate of Justus in the Panchayat election, filed O.P(Election) No.111/95, inter alia contending that Justus was disqualified from contesting the elections since he was an employee of the KSRTC. In that petition, Justus filed an affidavit stating that he had resigned from KSRTC and therefore, he was not an employee of the KSRTC at the time of filing nomination, which was considered and the election petition was dismissed. A copy of the judgment in the election petition is also produced as Ext.R1(c). After his tenure as a member of the Panchayat was over, Justus filed O.P.No.124/01 before this Court, seeking a direction to grant him invalid pension, which was disposed of by judgment dated 23.3.2001 directing the KSRTC to dispose of his representation dated 3.3.2001. Although a hearing was conducted on 31.10.2001, before orders could be passed, Justus died on 22.1.2002. Therefore, the matter was placed before the Board of Directors, who on 1.2.2003, resolved to accept the resignation tendered by Justus on 23.8.1995 with effect from 18.8.1995, pursuant to which Ext.R1(a) memo dated 28.2.2003 was issued removing Justus from the rolls of the KSRTC with effect from 18.8.95. On w.p.c.37752/07 4 these averments the respondents contest the claims of the petitioner. 3. The petitioner would contend that in any event Sri.Justus cannot be denied invalid pension as per his application dated 12.10.95. 4. I have considered the rival contentions in detail. 5. At the outset I am constrained to hold that the petitioner has not disclosed material facts on the issue in her writ petition. She has not chosen to state in her writ petition that her husband had submitted resignation from KSRTC to contest the election to the local body. It is not also disputed before me that her husband submitted before the Election Tribunal that he had resigned from the services of the KSRTC and that he was not an employee of the KSRTC as on the date of submitting nomination for the election held on 23.9.1995. Had he been an employee of the KSRTC at the time of filing nomination, he would have been disqualified for contesting the elections. Despite having been aware of these facts, the petitioner has not chosen to state the same in the writ petition, which amounts to suppression of material facts and the writ petition deserves to be dismissed on w.p.c.37752/07 5 the ground alone. 6. On merits also I am not inclined to countenance the claim of the petitioner, which if done would amount to allowing the said Justus to take advantage of his own wrong doing. He contested the local body election on the premise that he resigned from services of the KSRTC. Without resigning from the KSRTC, he could not have validly contested the election. He having contested the election and enjoyed the fruits of having won the election, he and consequently his legal heirs, cannot turn around and claim that his resignation having not been accepted, he continued to be an employee of the KSRTC despite he having submitted resignation. He could not have and consequently the petitioner as his legal representative cannot, blow hot and cold. They also cannot take advantage of the situation and claim the best of both worlds. Therefore, having taken advantage of his resignation to contest the election, the said Justus must be deemed to have ceased to be an employee of the KSRTC on account of resignation from the date from which he wanted the resignation to take effect although the resignation was not formally accepted by the KSRTC. In the particular facts of this w.p.c.37752/07 6 case, the decision in James Mathew's case (supra) is clearly distinguishable. 7. I do not also find any merit in the claim of the petitioner that since Justus had submitted application for invalid pension, the same should be granted. The application for invalid pension was submitted only on 12.10.1995, on which date Justus was not an employee of the KSRTC, he having contested the local body election on 23.9.1995 on the premise that he resigned from KSRTC prior to the date of submitting nomination for election. Further, Justus cannot be held to be eligible for invalid pension since he was not an invalid as he had no difficulty in contesting an election and invalidity, if any, occurred long after. He having actively contested an election, it cannot be held that he was eligible for invalid pension. 8. Therefore, on all counts, the petitioner is not eligible for any of the benefits prayed for. Accordingly, the writ petition is dismissed, but without any order as to costs. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.37752/07 7