IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 WP(C).No. 5261 of 2004(B) ------------------------------------- PETITIONER: -------------------- P.D. STEPHEN, APPRAISER, EDAKOCHI SERVICE CO-OPERATIVE BANK LTD. NO.116, EDAKOCHI, KOCHI-682 006. BY ADV. SRI.A.JAYASANKAR SRI.MANU GOVIND RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), ERNAKULAM, KOCHI-16. 3. EDAKOCHI SERVICE CO-OPERATIVE BANK LTD.NO.116, REPRESENTED BY ITS SECRETARY EDAKOCHI, KOCHI-682 006. R1 & R2 BY GOVERNMENT PLEADER SMT.M.K.PUSHPALATHA R3 BY ADV. SRI.JOLLY JOHN SRI.A.V.XAVIER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.02/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.5261/2004 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DT. 19.11.1981. EXT.P2:- COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DT. 9.10.82. EXT.P3:- COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DT. 11.3.02. EXT.P4:- COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DT. 13.9.02. EXT.P5:- COPY OF THE APPEAL MEMORANDUM DT. 20.10.02. EXT.P6:- COPY OF THE ORDER DT. 1.9.03. RESPONDENT'S EXHIBITS EXT.R3(1):- COPY OF THE RESOLUTION DT. 3.12.1981 THE COMMITTEE OF THE 3RD RESPONDENT REGARDING THE MISTAKES CREPT IN THE EXT.P1. EXT.R3(2):- THE REVISED ORDER DT. 9.10.1982 IN HM/11605/81 PASSED BY THE 2ND RESPONDENT. EXT.R3(3):- THE NOTICE UNDER RULE 176 ISSUED TO THE RESPONDENT DT. 12.9.85 WITH H.M. 11605/1981. EXT.R3(4):- COPY OF THE DECISION OF THE ASSISTANT REGISTRAR (GENERAL) KOCHI DT. 21.7.92 WITH NO. P. 740/92. EXT.R3(5):- COPY OF THE COMMUNICATION NO.P 658/94 DT. 25.5.94 OF THE ASSISTANT REGISTRAR (GENERAL) KOCHI. EXT.R3(6):- COPY OF THE PETITION OF THE PETITIONER DT. 20.10.01. EXT.R3(7):- DETAILED REPLY FILED BY THE 3RD RESPONDENT TO THE EXT.P5 APPEAL OF THE PETITIONER. /TRUE COPY/ P.A.TO JUDGE tss THOTTATHIL B. RADHAKRISHNAN, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ W.P.(C) No. 5261 of 2004-B ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 8th day of February, 2008 J U D G M E N T Petitioner was engaged in the service of the third respondent Society, on daily wages, as part time office attender. By Ext.P1, Joint Registrar regularised the service of the petitioner along with those of two other persons. Thereafter, by Ext.R3(2) Ext.P1 was cancelled. Ext.R3(2) order also contained regularisation regarding two persons covered by Ext.P1, other than the petitioner. Later Ext.P2 was issued regularising the service of the petitioner with effect from 22/10/1981, as a helper. That order was issued on 09/10/1982. 2. On 20/10/2001, the petitioner filed a petition before the Joint Registrar, who in turn issued Ext.P3 stating that the claim of the petitioner for regularisation, as was done as per Ext.P1, cannot be conceded for different reasons, including that his work was on daily wages and commission basis as against a non approved post, without any scale of pay. Accordingly, the request of the petitioner W.P.(C).No.5261/2004-B -: 2 :- was rejected. He filed another petition for reconsideration of Ext.P3 decision. That resulted in Ext.P4, whereby the Joint Registrar stated that it may not be available within his jurisdiction to review the earlier decision. Thereafter, the petitioner filed Ext.P5 appeal. That appeal has been rejected by the Government as per Ext.P6 order. 3. The petitioner has a case that after the issuance of Ext.P1, he had no knowledge about the transactions that led to the issuance of Ext.R3(2) and Ext.P2. He, therefore, states that those decisions, in so far as they affect him, are arbitrary and cannot be acted upon. His further contention is that once the Joint Registrar had issued Ext.P1, it was not open to the Joint Registrar to recall that decision by issuing a decision afresh either in the nature of Ext.R3(2) or Ext.P2. Still further, the learned counsel for the petitioner argued that, at any rate, the impugned decisions cannot stand in the way of the statutory retiral benefits of the petitioner in accordance with law, at least where, services which are not regular should also be counted for granting such pensionary benefits. W.P.(C).No.5261/2004-B -: 3 :- 4. The learned counsel for the Society argued that the petitioner was aware of Ext.3(2) and Ext.P2 decisions and he could not have attempted to re-open those decisions after a decade. Still further, it was argued that based on Ext.P2, necessary service papers and other actions have been taken, including for contribution towards provident fund. It is hence contended that the writ petition has to fail. 5. There is nothing on record to show that Ext.R3(2) and Ext.P2 were issued vacating Ext.P1, after giving notice to the petitioner for pre-decisional hearing. Ext.R3(2) was one issued acting on a report. Obviously, it proceeds on the basis that in issuing Ext.P1, the Joint Registrar had committed a mistake. Two among the three employees dealt with in Ext.P1 were regularised as per Ext.R3(2) order. Thereafter, Ext.P2 was issued as regards the petitioner. Even if I am to assume that the petitioner was not aware of those decisions inspite of the drawal of his service sheet and other particulars in relation to Provident Fund contribution, as pointed out by the learned counsel for the Society, when he moved the Joint W.P.(C).No.5261/2004-B -: 4 :- Registrar in 2001, the Registrar had stated reasons in Ext.P3(2) for the decision against the interest of the petitioner. 6. Ext.P3(2) is also criticized as the one issued without affording an opportunity of hearing. But, the fact remains that his entire contentions have been recorded in Ext.P4 while the Joint Registrar relegated him to the Government to file an appeal. The petitioner has no case that the Government did not hear him. The Government being the superior appellate authority under the K.C.S Act heard the petitioner and issued Ext.P6 stating reasons as to why the petitioner is not entitled to count the periods of his service as claimed by him. A perusal of the penultimate paragraph, as also the concluding one, in Ext.P6 explicitly shows that by applying any yardstick the petitioner is not entitled to get his appointment regularised with effect from a date prior to the date of sanctioning the post. Therefore, the mere absence of pre-decisional hearing in relation to Ext. R3(2) and Ext.P2 does not by itself denude the finality of the decision rendered by the Government. W.P.(C).No.5261/2004-B -: 5 :- 7. Not only that, the petitioner does not dispute the quality of his employment as has been found by the Government in relation to the period in question. Therefore, even if the earlier orders could be deprecated as violative of the rule of hearing, Ext.P6 cures such deficiency and such official decision has been rendered stating reasons, which are sustainable, in any view of the matter. Therefore, the challenge to the impugned decision including Ext.P6 fails. 8. However, this does not by itself mean that the entitlement of the petitioner for all service benefits would be effected by excluding the entire period of such service which has not been regularised, if such non regularised service could be reckoned in terms of the relevant statutory provisions for extending the benefits that may be due on retirement, in terms of the relevant statutes. In the result, confirming all the impugned decisions, this writ petition is disposed of clarifying that if the petitioner has any statutory entitlement for any retiral benefits by treating his service on such periods as has been found in Ext.P6 Government Order, the W.P.(C).No.5261/2004-B -: 6 :- same shall be given effect to in accordance with law. All such issues, if raised, would be decided upon by the competent statutory authorities. THOTTATHIL B.RADHAKRISHNAN, Judge ms