IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 WP(C).No. 15770 of 2009(M) -------------------------- PETITIONER(S): ------------------ THE TRAVANCORE DEVASWOM BOARD, REP.BY IT'S SECRETARY,OFFICE OF THE TRAVANCORE DEVASWOM BOARD,NANTHANCODE, THIRUVANANTHAPURAM-3. BY ADV. SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE SRI.P.GOPAL RESPONDENT(S): ------------------- 1. SRI.V.N.RAMAKRISHNA PILLAI, RETIRED THIRUVABHARANAM SPECIAL OFFICER, TRAVANCORE DEVASWOM BOARD,RESIDING AT PUSHPANJALI,PALACE ROAD,POOJAPURA P.O., THIRUVANANTHAPURAM. 2. THE KERALA LOJ AYUKTA,REP.BY ITS REGISTRAR,OFFICE OF THE LOK AYUKTA, LEGISLATIVE COMPLEX,VIKAS BHAVAN, THIRUVANANTHAPURAM. ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/12/2009, ALONG WITH WPC NO. 23196 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.15770/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE RELEVANT PORTION OF the ORDER OF THE GOVERNMENT GO(P) NO.180/06/FIN DT 18.4.2006. EXT.P2: TRUE COPY OF THE PROCEEDINGS OF the BOARD ROC NO.4000/06/EST.1 DT 7.8.2006. EXT.P3: TRUE COPY OF THE REPRESENTATION OF THE 1ST RESPONDENT DT 12.01.2007. EXT.P4: TRUE COPY OF the ORDER OF THE BOARD ROC NO.4000/06/EST.1 DT 15.10.2007 AND THE RESOLUTION. EXT.P5: TRUE COPY OF THE COMPLAINT NO.347 OF 2008 SUBMITTED BY THE 1ST RESPONDENT. EXT.P6: TRUE COPY OF THE OBJECTION SUBMITTED BY THE BOARD IN COMPLAINT NO.347OF 2008. EXT.P7: TRUE COPY OF THE RESOLUTION OF the BOARD DT 19.9.2008. EXT.P8: TRUE COPY OF THE PROCEEDINGS OF THE BOARD, ROC NO.4000/06/EST.1 DT 10.10.2008. EXT.P9: TRUE COPY OF THE ORDER OF THE LOK AYUKTA DT 12.12.2008 IN COMPLAINT NO.347 OF 2008. EXT.P10: TRUE COPY OF THE REPLICATION FILED BY THE BOARD DT 4.2.2009 IN COMPLAINT NO.347 OF 2008. EXT.P11: TRUE COPY OF the ORDER OF THE 2ND RESPONDENT DT 25.3.2009 IN COMPLAINT NO.347 OF 2008. EXT.P12: TRUE COPY OF THE PROCEEDINGS ROC NO.4000/06/EST.1 DT 11.1.2007. EXT.P13: TRUE COPY OF THE REPORT DT 12.8.2008 OF THE HON'BLE OMBUDSMAN. EXTS. OF R1 EXT.R1(a): TRUE COPY OF THE NOTICE DT 18.1.2008 ISSUED BY THE COUNSEL FOR THE 1ST RESPONDENT. WPC NO.15770/09 -2- EXT.R1(b): TRUE COPY OF THE RELEVANT EXTRACT OF THE BOARD ORDER ROC NO.4000/06/EST.1 DT 17.5.2006 REVISING THE PAY AND ALLIED MATTERS OF THE DEVASWOM EMPLOYEES,W ITH EFFECT FROM 1.7.2004. EXT.R1(c): TRUE COPY OF THE RELEVANT EXTRACT OF THE BOARD ORDER ROC NO.4000/06/EST 1 DT 17.5.2006. EXT.R1(d): TRUE COPY OF THE RELEVANT EXTRACT OF GO(P) NO.600/93/FIN DT 25.9.1993. EXT.R1(e): TRUE COPY OF THE RELEVANT EXTRACT OF GO(P) NO.3000/98/FIN DT 25.11.98. EXT.R1(f): TRUE COPY OF THE RELEVANT EXTRACT OF GO(P) NO.145/2006 DT 25.3.2006. EXT.R1(g): TRUE COPY OF THE RELEVANT EXTRACT OF ROC NO.1000/98/EST.1 DT 1.3.99 OF THE BOARD. EXT.R1(h): TRUE COPY OF THE RELEVANT EXTRACT OF ROC NO.4000/06/EST.1 DT 17.5.2006 OF THE BOARD. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NOs. 15770 & 23196 OF 2009 =========================== Dated this the 18th day of December, 2009 J U D G M E N T In both these writ petitions, Ext.P11 order rendered by the Kerala Lok Ayuktha is under challenge. For the sake of convenience, I shall refer to the facts in WP(C) No.15770/09. 2. The 1st respondent herein retired as a Senior Thiruvabharanam Special Officer under the petitioner. He filed Ext.P5 complaint before the Lok Ayuktha claiming that his pensionary benefits should be refixed at 50% in the scale of Rs.25400-33100 w.e.f. 1.4.05. The Board contested the claim by filing Exts.P6 and P10. The Lok Ayuktha heard the parties and allowed the claim by Ext.P11 order and directed that the benefits should be revised w.e.f. 01/04/2005. It is this order, which is under challenge. 3. At the outset, it should be stated that as far as the claim of the 1st respondent for refixation of his pensionary benefit of 50% in the scale of Rs.25400-33100 is concerned, there is no dispute about the scale of pay applicable or the percentage applicable, and the only dispute was regarding the effective date WPC 15770 & 23196/09 :2 : of refixation. On the strength of Exts.P1 and P2, the 1st respondent contended that in view of Clause 3.1 of Exts.P1 and P2 order, he is entitled to have refixation w.e.f. 01/04/2005. The Board disputed that claim by relying on Exts.P4 and P8 and contended that the revision can only be w.e.f. 1/10/2008. 4. Ext.P1 is the pay revision order issued by the Government of Kerala in 2006. Clause 3.1 provided that the benefits will be admissible w.e.f. 01/04/2005. After Ext.P1 was issued, the Board appointed a Pay Revision Committee. The Committee submitted its recommendations and considering the recommendation of the Pay Revision Committee and the report of the Commissioner, Ext.P2 proceedings of the Board was issued by the Secretary on 7/8/06. This proceedings reads as under:- PROCEEDINGS OF THE TRAVANCORE DEVASWOM BOARD Sub: Revision of pension and other related benefits to the State Government Pensioners-Benefits extended to the Travancore Devaswom Board Pensioners-Orders issued. Read:- 1) G.O(P) No.180/06/Fin.dt 18.4.2006. 2) Board's Order of even no.dated 16.5.2006. 3) Devaswom Commissioner's report ROC No.8126/06/Est. dt.4.8.2006. In the Government Order read as cited I, the State WPC 15770 & 23196/09 :3 : Government have issued orders revising the scheme of Pension and other related benefits in respect of State Government Pensioners. As per Board's Order cited II above, the Board entrusted the Pay Revision Committee headed by the Devaswom Commissioner to submit proposals for the implementation of the Revised State Government Pension Scheme in the Travancore Devaswom Board also. Devaswom Commissioner has submitted the copy of the minutes of the Pay Revision Committee, containing the proposals to extend the State Government Pensionary benefits to the Travancore Devaswom Board Establishment Pensioners (Read Paper III). After careful examination of the matter in detail, the Board has been pleased to sanction to extend the scheme of pension and other related benefits to Travancore Devaswom Board Establishment Pensioners as in the Government Order dated 18.4.06. (emphasis supplied) According to the 1st respondent, by this order, the Board adopted Ext.P1 in its entirety and since Ext.P1 was effective from 01/04/2005, he is entitled to have his pension refixed w.e.f. 01/04/2005. 5. The contention of the Board is that Ext.P1 by itself is inapplicable to the Board and should be adopted and implemented by it. It is stated that although by Ext.P2, it was decided to extend the benefits of Ext.P1, adoption of the pay WPC 15770 & 23196/09 :4 : revision was only by Ext.P4 resolution of the Board in the meeting held on 15/10/2007. It is stated that the decision in Ext.P4 was to implement the pay as revised in the Government from the date on which the Board issues an order in this behalf. It is stated that accordingly Board issued Ext.P8 order on 10/10/2008 and therefore pay revision was adopted and implemented only from 1/10/2008. 6. Therefore, the controversy before the Lok Ayuktha had boiled down to the question as to whether Ext.P2 order amounted adoption of Ext.P1 or whether the adoption was by Exts.P4 and P8 referred to above. This factual controversy was appreciated by the Lok Ayuktha with reference to the relevant orders and the Lok Ayuktha has held as follows:- Now this forum has to consider only the question whether the complainant is entitled to get arrears of pension from 1.4.2005. 1.4.2005 is the date from which the pension of the Government servants was revised. In GO(P) 180/06/Fin. dt 18.4.2006 it is clearly stated in paragraph 3-1 that pension in respect of those who retired prior to 1.7.2004 shall be revised from 1.4.2005. Respondent Board adopted the Government order as such and hence the pension of those who retired prior to 1.7.2004 stood revised with effect from 1.4.2005. Now it is contended by the respondent Board that subsequently an order was made by the Board saying that the revision of pension would be only from 10.10.2008. As and when the Government order revising the pension was adopted by the respondent Board WPC 15770 & 23196/09 :5 : the order revising pension to the Devaswom Board employees also came into force on the date mentioned in the Government order for the reason that Government order was as such adopted by the order made by the respondent Board. The right to get pension revised from 1.4.2005 vested with the employees of the respondent Board and that cannot be taken away by the Board by a subsequent decision. There is no reason forthcoming for taking a decision giving effect to the revision of pension only from 10.10.2008. The benefit which accrued to the employees of the Board cannot be taken away by an arbitrary decision of the respondent Board and that too without giving an opportunity to the employees of being heard. In the above circumstances, we find that the complainant is entitled to get the pension revised from 1.4.2005. 7. While considering the validity of Ext.P11 order, this Court has to examine whether the findings of fact arrived at by the Lok Ayuktha in Ext.P11 is a perverse one warranting interference in a proceedings under Article 226 of the Constitution of India. The sustainability of the findings in Ext.P11 is to be examined in the light of Ext.P2 proceedings issued by the Travancore Devaswom Board. A reading of Ext.P2, and particularly its concluding portion, shows that after considering the matter in its entirety, the Board accorded sanction to extend the scheme of pension and other related benefits to its employees in the establishment wing as in the Government Order dated 18/4/2006, which is Ext.P1. Thus Ext.P2 clearly shows there has WPC 15770 & 23196/09 :6 : been an adoption of Ext.P2, without any reservation whatsoever. If Ext.P2 shows adoption of Ext.P1 in its entirety, the employees of the Board like the 1st respondent are entitled to the benefit of Ext.P1 w.e.f. 01/04/2005 as rightly held by the Lok Ayuktha. 8. Counsel for the petitioner contended that Ext.P2 is only a decision to extend the benefit of Ext.P1 and that modalities were to be worked out and implemented subsequently by the Board. In my view, on the face of Ext.P2, such an argument cannot be raised by the Board for the reason that no such reservation has been made in Ext.P2. Further extension of Ext.P1 presupposes adoption of Ext.P1 and unless the order is adopted, there cannot be any question of extending the benefit of the order. Counsel then contended that the capacity of the establishment to bear the financial burden is a relevant consideration and that the Lok Ayukta did not advert to such contention of the Board. Reliance was placed on the Apex Court judgments in State of Punjab v. Amar Nath Goyal [(2005) 6 SCC 754] and State of Bihar v. Bihar Pensioners Samaj [(2006) 5 SCC 65]. True financial capacity of the employer is certainly a relevant consideration while a decision on the payment WPC 15770 & 23196/09 :7 : of benefits to its employees is taken. However, by Ext.P2, the Board itself decided to adopt Ext.P1 without any reservations. That apart, Ext.P11 order does not show that any such contention was urged before the Lok Ayukta. If that be so, the Lok Ayukta cannot be faulted for not considering this contention now raised by the petitioner. Therefore, I find no reason to invalidate Ext.P11 order rendered by the Lok Ayuka. Writ petition is dismissed. 9. In so far as WP(C) No.23196/09 is concerned, the issue is similar to the complaint of the 1st respondent in WP(C) No.15770/09. For parity of reasons, this writ petition is also liable to be dismissed. Writ petitions are dismissed. ANTONY DOMINIC, JUDGE Rp