IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 WP(C).No. 12669 of 2008(G) --------------------------------------- PETITIONER(S): ----------------------- SWARNALATHA, W/O.LATE O.BHASKARAN, (RETIRED SUB-ENGINEER, KOZHIKODE DIVISION, KSEB) ORALAKKOTTUE HOUSE, VELLAYAIKODE P.O., PANTHEEANKAVU, KOZHIKODE DISTRICT. BY ADV. SRI.SIVAN MADATHIL RESPONDENT(S): ----------------------- 1. KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY. 2. THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER (ELECY.) GENERAL, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 4. THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, OFFICE OF THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION- FEROKE, KOZHIKODE. ADV. SRI. ASOK M.CHERIYAN, SC, KSEB FOR R1 TO 4 SRI.K.S.ANIL, SC, KSEB FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.12669/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE LETTER DT. 22.4.98 BY THE PETITIONER TO the 2ND RESPONDENT. P2:- COPY OF THE LETTER DT. 10.1.2000 BY THE PETITIONER TO 2ND RESPONDENT. P3:- COPY OF THE CERTIFICATE DT. 5.6.02 ISSUED BY THE MEDICAL BOARD. P4:- COPY OF THE COMMUNICATION DT. 22.7.02 BY THE 4TH RESPONDENT. P5:- COPY OF THE PROCEEDINGS ORDER NO.EBS 5/9/03 DT. 18.12.03. P6:- COPY OF THE REPRESENTATION DT. 24.11.05 BY THE PETITIONER TO THE HONOURABLE MINISTER FOR ELECTRICITY. P7:- COPY OF THE REPRESENTATION DT. 11.12.07. P8:- COPY OF THE REPRESENTATION OF THE PETITIONER DT. 24.8.08. /TRUE COPY/ P.A. TO JUDGE tss P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No.12669 of 2008 ------------------------------- Dated this the 18th November, 2008. J U D G M E N T The petitioner's husband, late O.Bharathan, was an employee of the Kerala State Electricity Board, hereinafter referred to as 'the Board' for short. While in service, he sought premature retirement on medical grounds and claimed invalid pension. His attempts in that regard were not successful. He later passed away on 19.9.2006. He had not applied for regular pension. His wife, the petitioner herein, has filed this writ petition claiming invalid pension and disbursement of arrears thereof. The petitioner has also filed Ext.P8 representation dated 24.8.2008 before the Chairman of the Board claiming regular pensionary benefits. She has pointed out in the said representation that her husband was prosecuting his claim for invalid pension and in the process omitted to apply for regular pension. She submits that her husband was not paid invalid W.P.(C) No.12669 of 2008 2 pension and the respondents cannot on that ground deny him regular pension and other terminal benefits. 2. The respondents have filed a counter affidavit disputing the entitlement of the petitioner or her husband for invalid pension. They also state that since the petitioner's husband did not apply for regular pension, the pension ceases to be payable. Reliance is placed on Rule 135 of Part III of the K.S.R. in support of the said contention. 3. When the writ petition came up for hearing today, Sri.Sivan Madathil, the learned counsel appearing for the petitioner submitted that the petitioner is not presently pursuing her request for invalid pension and that the Board has a statutory obligation to sanction and disburse regular pension and other terminal benefits to her husband. The learned counsel further submits that Rule 135 of Part III of the K.S.R. relied on by the Board applies only to a case where an employee to whom pension is sanctioned does not draw the pension and that Rule 135 cannot apply to a situation where the employer does not W.P.(C) No.12669 of 2008 3 sanction regular pension to the employee. Per contra, Sri.Asok M.Cherian, the learned Standing Counsel appearing for the Board submits, relying on Rule 135 of Part III of the K.S.R., that as the petitioner's husband did not draw pension for more than three years, the petitioner cannot claim arrears of pension or other terminal benefits. 4. I have considered the submissions made at the Bar by the learned counsel on either side. The claim made by the petitioner in the writ petition and by her husband all along was for invalid pension. The said claim was not considered or rejected by the Board. While the said claim was pending, the petitioner's husband attained the age of superannuation and he retired from the service of the Board on 30.6.2003, after completing nearly 27 years of service. The petitioner's husband passed away on 19.9.2006, three years after his retirement. 5. The petitioner now submits that even if her husband's claim for invalid pension was not allowable, he was entitled to regular pension and other terminal benefits including W.P.(C) No.12669 of 2008 4 gratuity and family pension. She further submits that she has in Ext.P8 representation moved the Chairman of the Board claiming the said benefits. The Board disputes her entitlement for regular pension relying on Rule 135 of Part III of K.S.R. The Board also relies on the decision of this Court in Barathy v. Principal Secretary to Government (2007(2) KLT SN 27) to contend that if the pensioner does not draw pension for three years, the pension will cease to be payable. 6. In my considered opinion, there is no merit in the stand taken by the respondents. Rule 135 of Part III of K.S.R. applies only to a case where pension is sanctioned, but not drawn by the pensioner. All that Rule 135 stipulates is that if the pension remains undrawn for more than three years, the pension shall cease to be payable. To attract Rule 135, the employee must have been sanctioned pension and he should have failed to draw the pension. The decision in Barathy's case (supra) was a case where the pensioner did not draw pension for more than three years. In the instant case, it is common ground that the petitioner's husband did not even apply for regular W.P.(C) No.12669 of 2008 5 pension. In other words, the petitioner's husband was not sanctioned any terminal benefits at all. Such being the situation, Rule 135 of Part III of K.S.R. cannot have any application. Rule 135 does not state that if the pensioner does not apply for pension within three years, he or his legal heirs will forfeit their right to receive the pensionary benefits. Hence, the claim made by the petitioner in Ext.P8 representation merits consideration at the hands of the respondents. In the result, I dispose of the Writ Petition with a direction to the Board to consider the request made by the petitioner in Ext.P8 representation for the grant of regular pension to her husband. The Board shall take a decision on the request made by the petitioner in Ext.P8 and fix and pay the terminal benefits which the petitioner's husband was entitled to, taking into account his length of service in the Board. The arrears of pension payable to the petitioner's husband from 1.7.2003 till his death 19.9.2006 shall be fixed and disbursed to the petitioner. The Death cum Retirement Gratuity shall also be likewise fixed and disbursed to the petitioner. The petitioner W.P.(C) No.12669 of 2008 6 shall also be sanctioned Family Pension payable from 20.9.2006, onwards. Steps in this regard shall be taken and completed within a period of four months from the date of receipt of a copy of this judgment. If the petitioner has to submit an application in the prescribed form for the grant of these benefits, the Board shall inform her accordingly and also forward the necessary application forms to the petitioner. If besides the terminal benefits referred to above, the petitioner's husband is entitled to any other terminal benefit, that shall also be disbursed to the petitioner. P.N.RAVINDRAN, JUDGE nj.