IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 WP(C).No. 24654 of 2008(I) -------------------------- PETITIONER(S): ------------------- MOHAMMED MUNEER, (RETIRED VILLAGE ASSISTANT), S/O MOHAMMED YOUSUF, HOUSE NO. 5/2316 A, VARYAVALAPPA, BEHIND KARUNAKARA HOSPITAL, CALICUT -1. BY ADV. SRI.K.D.BABU SRI.P.J.MATHEW SRI.K.B.ARUNKUMAR RESPONDENT(S): ------------------- 1. THE STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER, LAND REVENUE, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.K.SANIL KUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.24654/08 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE ORDER DATED 11.3.1996. EXT.P2: TRUE COPY OF THE PROCEEDINGS OF THE SPECIAL TAHASILDAR, KOZHIKODE DATED 29.6.1996. EXT.P3: TRUE COPY OF THE ORDER DATED 5.12.2000. EXT.P4: TRUE COPY OF THE ORDER DATED 12.11.2001. EXT.P5: TRUE COPY OF THE JUDGMENT DATED 1.9.2005. EXT.P6: TRUE COPY OF THE PROCEEDINGS DATED 28.12.2005. EXT.P7: TRUE COPY OF THE ORDER DATED 1.2.2008. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 24654 OF 2008 (I) ===================== Dated this the 16th day of September, 2009 J U D G M E N T The petitioner joined as Lower Division Clerk in the Revenue Department on 6/8/1969. 2. On an application made in terms of the rules then prevailing, he was granted leave without allowances for taking employment abroad for 15 years from 26/3/1979. On expiry of the leave, petitioner ought to have rejoined on 25/3/1994. According to him, he applied for extension of leave, but however, though it was rejected, the decision was not informed to him. Be that as it may, petitioner remained on unauthorised absence and disciplinary proceedings were initiated. Memo of charges were issued on 28/12/95 and written statement was filed by the petitioner on 30th of December, 1995 itself. 3. While so, by Ext.P1, District Collector allowed the petitioner to rejoin duty subject to the concurrence of the Board of Revenue. Accordingly, the petitioner joined duty on 13/3/96 and retired from service as per Ext.P2 order w.e.f. 30/6/96. Board of Revenue did not concur with the step taken by the District WPC 24654/08 :2 : Collector, as a result thereof, disciplinary action continued. It is stated that by order dated 7/12/96, he was informed of the provisional decision taken by the authorities to terminate his services. That order was confirmed as per Ext.P3 dated 5/12/2000. 4. Ext.P3 order was challenged in OP NO.16513/01, which was disposed of directing to consider his representation against Ext.P3 and also his request for minimum pension. That was rejected by Ext.P4 order, which again was challenged in WP(C) NO.2624/02. The writ petition was dismissed and thereupon the petitioner filed WA NO.273/05. Writ appeal was disposed of as per Ext.P5 judgment. A reading of Ext.P5 judgment shows that although validity of termination was one of the issues in dispute, petitioner confined his prayer for minimum pension for the services rendered by him during the period 6/8/69 to 26/3/1979. The Division Bench finally directed that though the services rendered by the petitioner was for less than 10 years, still his services could be reckoned as 10 years service for pensionary benefits in terms of Rule 57 of Part III KSR. On this basis, petitioner was allowed to make a representation to the 2nd WPC 24654/08 :3 : respondent and the 2nd respondent was directed to consider the same. 5. Accordingly, representation was made and that was considered and rejected by the 2nd respondent as per Ext.P6. In Ext.P6, it is stated that since the service of the petitioner was terminated and therefore, he is not eligible for pension in terms of Rule 5(a) of Part III KSR. It is challenging Ext.P6, the writ petition is filed. 6. Although argument was addressed against the validity of Ext.P3 order terminating the service of the petitioner, I am not inclined to consider the same for the reason that a reading of judgment in WA No.273/05 shows that though validity of termination was one of the issues raised in that case, the contentions were given up and the petitioner confined his prayer only to grant of pension. Thus, the contentions against Ext.P3 having been given up on an earlier occasion, the petitioner cannot now be allowed to re agitate the same in a subsequent proceedings. 7. Then the only issue that arises for consideration is the validity of Ext.P6. Rule 5(a) Part III KSR provides that no pension WPC 24654/08 :4 : may be granted to an employee dismissed or removed for misconduct. Therefore, if the case of the petitioner is accepted as one of dismissal for a misconduct, he is ineligible for pension in terms of the aforesaid rule. However, counsel contends that even in Ext.P3 order of punishment, he was shown to have been 'terminated' from service and not 'dismissed' from service. It is contended that termination is not a punishment even, and therefore, the said termination cannot deprive the petitioner atleast the minimum pension, which he is eligible for. 8. True, as contended by the counsel for the petitioner, the word used in Ext.P3 is termination. However, fact remains that the petitioner was proceeded against in a disciplinary proceedings for a misconduct that he committed. It was in such proceedings that punishment was imposed resulting in premature cessation of employment, which in my view, is nothing less than dismissal from service, although the word used is termination. That apart even if this contention affecting the validity of Ext.P3 was available to the petitioner that ought to have been urged by the petitioner atleast when this Court considered WA NO.273/05. 9. Therefore, in effect and for all purposes, the WPC 24654/08 :5 : termination effected by Ext.P3 is nothing less than dismissal and if that be so Rule 5(a) of Part III KSR applies to his case rendering him ineligible for pension. I am not in a position to take a view different from what is taken by the 2nd respondent in Ext.P6. Writ petition fails and is dismissed. ANTONY DOMINIC, JUDGE Rp