IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 OP.No. 33985 of 2001(U) ----------------------------------- PETITIONER: ------------------- E.N.VISWANATHAN, EDACHERIL HOUSE, KANAYANNUR, CHOTTANIKKARA. BY ADV. SRI.P.RAVINDRAN RESPONDENTS: ------------------------ 1. DIRECTOR OF PRINTING, THIRUVANANTHAPURAM. 2. GOVERNMENT OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 3. ACCOUNTANT GENERAL ( A & E), KERALA, THIRUVANANTHAPURAM. *ADDL.R4 IS IMPLEADED: R4. SUB TREASURY OFFICER, MULANTHURUTHY. (*ADDL.R4 IS IMPLEADED AS PER ORDER DTD. 18/07/2002 IN C.M.P.NO.33393/2002) BY GOVERNMENT PLEADER SRI. SANDESH RAJA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NOS.55485/2001 AND 33392/2002 IN O.P.NO.33985/2001 U DISMISSED 12/02/2008 SD/- P.N.RAVINDRAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF JUDGMENT IN O.P.NO.8328/96 DTD. 24/05/1996 OF THIS HONOURABLE COURT. EXT.P2: COPY OF ORDER DTD. 18/07/1996 ISSUED BY R1 PROMOTING THE PETITIONER AS SENIOR FOREMAN. EXT.P3: COPY OF ORDER DTD. 30/07/2001 ISSUED BY R1 ACCEPTING THE REQUEST OF THE PETITIONER FOR VOLUNTARY RETIREMENT W.E.F. 31/05/2001. EXT.P4: COPY OF THE ORDER DTD. 30/05/2001 ISSUED BY R1 REVERTING THE PETITIONER FROM THE POST OF SENIOR FOREMAN TO THE POST OF JUNIOR FOREMAN. EXT.P6: (C.M.P.NO.33393/2002) COPY OF COMMUNICATION FROM THE 1ST RESPONDENT DTD. 2/07/2002. /TRUE COPY/ P.S.TO JUDGE Kss P.N.Ravindran, J. ============== O.P.No.33985 of 2001 ================ Dated this the 12th day of February, 2008. JUDGMENT The petitioner was appointed by promotion as Senior Forman (Printing) in the Printing and Stationery Department as per Ext.P2 order dated 18.7.1996. While the petitioner was thus continuing in service, he submitted an application dated 24.2.2001 in terms of Rule 56 of Part III of the K.S.R. for voluntary retirement from service. By Ext.P4 order dated 30.5.2001, the Director of Printing and Stationery ordered the petitioner's reversion from the category of Senior Foreman (Printing) to the category of Junior Foreman (Printing). By Ext.P3 order dated 30.7.2001, the petitioner's request for voluntary retirement was granted with effect from 31.5.2001. Ext.P3 describes the petitioner as Junior Foreman (Printing) and also refers to Ext.P4 proceedings dated 30.5.2001. The petitioner has in this original petition challenged Ext.P4 on the short ground that it was not issued with notice to him and that in any case, it OP 33985/01 -: 2 :- was issued and communicated to him with an anterior date long after 30.5.2001. The petitioner has in this original petition prayed the following reliefs: "a) call for the records leading to Ext.P4 and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction; b) declare that the petitioner is entitled to get his pension refixed on the basis of his pay scale in the post of Senior Foreman and further direct the respondents to disburse the pensionary benefits on that basis; c) issue a writ of mandamus commanding the respondents to disburse the retirement benefits due to petitioner untrammelled by Ext.P4 forthwith;" 2. I have heard Sri. P.Ravindran, the learned Senior Counsel appearing for the petitioner and Sri.K.Sandesh Raja, the learned Government Pleader appearing for the respondents. The learned Senior Counsel for the petitioner submitted that the respondents have not filed a counter affidavit traversing the case set out by the petitioner in the original petition and that Ext.P4 order was passed with an anterior date long after 30.5.2001. The learned Senior Counsel submitted that the petitioner is OP 33985/01 -: 3 :- therefore entitled to terminal benefits treating him as a person who retired from service as Senior Foreman (Printing). Per contra, Sri.K.Sandesh Raja, the learned Government Pleader appearing for the respondents submitted that the petitioner's case is concluded by the decisions of this Court in O.P.No.15764 of 2002 and W.A.No.109 of 2004. 3. I have considered the rival contentions. The petitioner had admittedly filed O.P.No.15764 of 2002 challenging the steps taken to recover a sum of Rs.33,439/- from his terminal benefits, described as excess salary drawn by him. While the said original petition was pending, the Director of Printing and Stationery issued an order dated 2.11.2002 withdrawing the steps taken to recover the excess salary drawn by the petitioner. Taking note of the said development, a learned single Judge of this Court disposed of O.P.No.15764 of 2002 recording the submission made by the learned counsel appearing for the petitioner that the petitioner's right to be promoted as Senior Foreman (Printing) and to hold the said post need not be examined by this Court, since he has retired from service. By the said judgment, this Court also directed the respondents to settle OP 33985/01 -: 4 :- the pensionary claims of the petitioner. It appears that pursuant to the direction issued by this Court in O.P.No.15764 of 2002, the retirement benefits payable to the petitioner were fixed, reckoning him as Senior Foreman (Printing) till 30.5.2001 and as Junior Foreman for the period thereafter. The petitioner thereupon filed W.P.(C)No.32889 of 2003. Aggrieved by the dismissal of the said writ petition, the petitioner filed W.A.No.109 of 2004. A Division Bench of this Court disposed of the said writ appeal by judgment delivered on 27.10.2006. The operative portion of the judgment in W.A.No.109 of 2004 reads thus: "3. So, the death cum Retirement Gratuity payable shall be reckoned taking into account the emoluments the incumbent had been drawing as on the date of retirement. Admittedly, he had been working competently until 30.5.2001 as a Senior Foreman and performing the duties of a Senior Foreman. As on 31.5.2001, he was entitled to be paid the salary and allowances at the rate applicable to Senior Foreman upto 30.5.2001 and at the rate applicable to Junior Foreman on 31.5.2001. In such circumstances, the calculation of Death cum Retirement Gratuity, taking the pay as admissible to Junior Foreman alone is not correct. In the impugned OP 33985/01 -: 5 :- judgment, this perspective of the issue has never been examined by the learned single Judge. Going by the Rules examined above, the Death cum Retirement Gratuity admissible to the appellant has to be calculated on the basis of the emoluments that he was entitled to, as per law as if orders of reversion was effective from 31.5.2001. Consequently, we direct that Death cum Retirement Gratuity shall be recomputed as above and shall be paid within three months from the date of receipt of a copy of this judgment. 4. But the case of pension is on a different footing, as he had already been reverted retrospectively as Junior Foreman. Therefore, the average emoluments has to be calculated as if he had performed duty only as a Junior Foreman, because of retrospective reversion." 4. In the light of the judgment in W.A.No.109 of 2004, the petitioner cannot claim or be granted the reliefs prayed for in this original petition. In the result, the original petition fails and it is dismissed. No costs. P.N.Ravindran, Judge. ess 14/2