IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 WP(C).No. 36140 of 2007(S) -------------------------- OA.578/2006 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS/RESPONDENTS IN O.A.: --------------- 1. UNION OF INDIA, REPRESENTED BY CHIEF PERSONAL OFFICER, SOUTHERN RAILWAY, PARK TOWN P.O., CHENNAI -3. 2. THE SENIOR DEVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALAGHAT. BY ADV. SRI.B.JAYASANKAR, SC, RAILWAYS SRI.C.S.DIAS,SC, RAILWAYS RESPONDENT/APPLICANT IN O.A.: --------------- U.V.RAMACHANDRAN, WATCHMAN (RTD.), SECTION ENGINEER'S OFFICE. SOUTHERN RAILWAY, CALICUT, UMIKADAN VEETTIL, PARAPPANANGADI, KERALA. ADV. SRI.SIBY J.MONIPPALLY FOR R1 SRI.JYOTHISH.J.KALLINGAL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/07/2011, THE COURT ON 08/08/2011 DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1: COPYOF O.A.NO.578/2006 FILED BY THE RESPONDENT BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL WITH ANNEXURES. EXT.P2: COPY OF THE REPLY AFFIDAVIT FILED BY THE PETITIONERS IN THE O.A. EXT.P3; COPY OF THE SAID ORDER DT.13.4.2007 IN O.A.O.578/2006 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. //TRUE COPY// PA TO JUDGE “CR” C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. ------------------------------------ W.P.(C) No. 36140 OF 2007 ------------------------------------ Dated this the 8th day of August, 2011 J U D G M E N T ~~~~~~~ P.S.Gopinathan, J. The respondents in O.A.No.578/2006 on the file of the Central Administrative Tribunal, Ernakulam Bench are the petitioners. They, under Articles 226 and 227 of the Constitution of India assail Ext.P3 order dated 13.4.2007 in the above Original Application. The respondent was engaged by the petitioners as casual labourer on 21.3.1967. He was given temporary status with effect from 21.9.1971. While so, he was terminated in 1974 on medical grounds. Aggrieved by the order of termination he moved this Court under Article 226 of the Constitution of India by filing O.P.No.5060/1976. By judgment dated 5.4.1978, this Court ordered to regularise the respondents on arriving at a finding that the order of termination was not sustainable and hence non est in law. Therefore, the petitioners were directed to restore the respondent with consequential benefits. In compliance of that W.P.(C) No.36140/2007 2 judgment, the respondent was regularised with effect from 20.2.1985 and was working as a gangman. On 31.12.2005, he retired from service. To determine the pension, as per the Pension Rules, 50% of the temporary status period is to be counted along with the regular service. Accordingly, the petitioners calculated the qualifying service for pension as 28 years. Respondent, being aggrieved, represented for counting the qualifying regular service atleast reckoning from the date when his juniors were regularised in service. The petitioners rejected his representation stating that the respondent was sleeping over for 30 years and that the claim made is heavily time barred and doesn't merit any consideration. Aggrieved by the said order, the respondent moved the above application before the Tribunal. By the impugned order, the application was allowed and the petitioners were directed to count 50% of the temporary status period from 1971 to 1980 and regular service from 1980 to 2005 for calculating retiral benefits. On such calculation, the respondent was found to have a total service of 30 years. The petitioners were directed to reckon 30 years of qualifying service, instead of 28 years and to work out the W.P.(C) No.36140/2007 3 terminal benefits as well as monthly pension within a period of six months. 2. Before us it is not disputed that had not the respondent been terminated his service would have been regularised atleast in the year 1980. If that is so, the order impugned is not at all any way erroneous because he had in his credit non regularised temporary status service from 1971 to 1980 and thereafter regularised service till 2005. The very case of the respondent is that all his colleagues in the 1971 batch were regularised in the year 1979. M/s Unnikrishnan and Narayanan, both Khalasis of the 1973 batch, were regularised in the year 1980. It is also not disputed that the termination of the respondent was declared non est by this Court and he was directed to be reinstated with consequential benefits. But the appellants regularsied him only in the year 1984. That order itself is in violation of the writ of this Court. If the writ of this court is complied, the respondent should have been regularised at least in 1980. We find no merits in the submission that the respondent didn't raise any objection at the time when he was W.P.(C) No.36140/2007 4 regularised and that he was sleeping over for about 30 years. Respondent shall not be denied retiral benefits for the mistake committed by the petitioners. It is not in dispute that consequence of the regularisation would no way be benefited the respondent in any manner other than counting his service for retiral benefits. Sometimes, the respondent might not have been then aware of the consequence that might take away his due right at the time of retirement. Therefore, in the event, the respondent, who is a low paid employee, failed to assail the order of regularisation with effect from a later date than due, that is not at all a reason to decline the retiral benefits which the respondent otherwise would have been entitled to. Petitioners would have been more fair in recognizing the legal rights of the employees in the lower strata. They shall have strictly complied the writ of this Court. If done so, this dispute would not have arisen. Technicalities should not be allowed to operate against rendering justice, that too in restoring retiral benefits of a low paid employee. We find that the Tribunal below had no way gone wrong. The order impugned is no way vitiated either by illegality, impropriety or perversity so as to be rectified W.P.(C) No.36140/2007 5 in exercise of writ jurisdiction. The Writ Petition is devoid of merits. Accordingly, it is dismissed with costs. (C.N.RAMACHANDRAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) ps/2/8