IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 WP(C).No. 17134 of 2010(N) -------------------------- PETITIONER(S): --------------- BASIL ATTIPETTY @ BASIL.A.G, ATTIPETTY HOUSE, NAYARAMBALAM.P.O, KOCHI - 682 509. BY ADV. SRI.BAISIL ATTIPETY@BAISIL(PARTYINPERSON RESPONDENT(S): --------------- 1. SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, REPRESENTED BY REGISTRAR. 2. THE FINANCE OFFICER, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY. 3. THE VICE CHANCELLOR, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY. ADV. SRI.P.C.SASIDHARAN, SC SREE SANKARACHARY FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/11/2011, THE COURT ON 12/12/2011 DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF CONDUCT CERTIFICATE DT. 5.12.2008 EXT.P2-TRUE COPY OF DO. DASTED 11.1.2007 EXT.P3-TRUE COPY OF NOC DT. 18.7.2009 EXT.P4-TRUE COPY OF ORDER OF ANNUAL INCREMENT DT.21.5.2009 EXT.P5-TRUE COPY OF TRANSFER ORDER DT.23.1.2009 EXT.P6-TRUE COPY OF COUNTER FILED ON 2.2.2009 IN WPC 3044/2009 EXT.P7-TRUE COPY OF INTERIM ORDER OF STAY DT.3.2.2009 IN WPC 3044/2009 EXT.P8-TRUE COPY OF WITHDRAWAL ORDER DT.5.2.2009 ISSUED BY THE RESPONDENT UNIVERSITY EXT.P9-TRUE COPY OF JUDGMENT DT.1.6.2009 IN WPC 3044/2009 EXT.P10-TRUE COPY OF VOLUNTARY RETIREMENT OPTION DT.8.10.2009 EXT.P11-TRUE COPY OF ORDER DATED 27.1.2010 EXT.P12-TRUE COPY OF INTERIM ORDER DT.20.1.2010 IN IN WPC 33714/2009 EXT.P13-TRUE COPY OF JUDGMENT DT.25.1.2010 IN WPC 2331/2010 EXT.P14-TRUE COPY OF LETTER DT.3.2.2010 SENT BY THE PETITOINER EXT.P15-TRUE COPY OF TELEGRAM SENT ON 6.3.2010 BY THE PETITONER EXT.P16-TRUE COPY OF CIRCULAR DT.11.3.2010 EXT.P17-TRUE COPY OF IA 5956/2010 IN WPC 33714/2009 AND THE JUDGMENT IN WPC 33714/09 EXT.P18-TRUE COPY OF JUDGMENT DT.4.2.2010 IN WPC 19573/2009 EXT.P19-TRUE COPY OF CIRCULAR DATED 25.1.2003 EXT.P20-TRUE COPY OF JUDGMENT DT.8.9.2010 IN R.P.817/2010 EXT.P21-TRUE COPY OF LETTER DATED 12.7.2010 ISSUED TO THE PETITIONER's EXT.P22- TRUE COPY OF REPRESENTATION DT.17.3.2011 RESPONDENTS' EXTS: EXT.R1(A)- TRUE COPY OF UNIVERSITY ORDER DT.4.12.2009 EXT.R1(B)-TRUE COPY OF REPORT DATED 24.1.2008 EXT.R1(C)-TRUE COPY OF DO. DATED 26.10.2009 EXT.R1(D)-TRUE COPY OF MEMO DATED 27.1.2010 EXT.R1(E)-TRUE COPY OF COMMUNICATION DT.25.2.2010 EXT.R1(F)-TRUE COPY OF NOTICE DT.22.4.2010 EXT.R1(G)-TRUE COPY OF ENVELOPE SENT BY THE PETITIONER's EXT.R1(H)-TRUE COPY OF MEMO OF CHARGES EXT.R1(I)-TRUE COPY OF PROPOSED PUNISHMENT EXT.R1(J)-TRUE COPY OF ENQUIRY REPORTed EXT.R1(K)-TRUE COPY OF EXPLANATION DT.19.4.2011 EXT.R1(L)-TRUE COPY OF CONFIRMED MINUTES EXT.R1(M)-TRUE COPY OF MINUTES OF THE 68TH MEETING EXT.R1(N)-TRUE COPY OF REPORT EXT.R1(O)-TRUE COPY OF PROCEEDINGS DT.27.1.2010 // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 17134 of 2010-N - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of December, 2011. JUDGMENT The petitioner who had sought voluntary retirement from the service of the University, is mainly seeking for a direction to the University to disburse the pensionary benefits. 2. The petitioner was working as Section Officer (Higher Grade) and his application for voluntary retirement is produced as Ext.P10, which is dated 8.10.2009. According to him, he has completed 20 years of service on 5.9.2009. The option for voluntary retirement was exercised under Rule 56 of Part III K.S.R. 3. When the University did not pass any order, the petitioner filed W.P.(C) No.33714/2009. After hearing parties, this Court passed an interim order therein, a copy of which is produced as EXt.P12 herein. The same is dated 20.1.2010. It is his case that pursuant to the said order, the petitioner was relieved from the service of the University as per Ext.P11 order dated 27.1.2010. Prior to the issuance of the same, seeking for police protection for enforcement of the order Ext.P12, the petitioner had approached this Court by filing W.P.(C) No.2331/2010 and the copy of the judgment wpc 17134/2010 2 is produced as Ext.P13. As directed by this Court in Ext.P12 interim order, the petitioner had given an undertaking by executing a bond, since it was noted in the interim order that proceedings for recovery of loss was pending against him. Thereafter, the petitioner enrolled himself as a lawyer and is practicing as such. It is the case of the petitioner that the University, by Ext.P16 circular took steps to quantify the liabilities, if any, against him for releasing the pension, but thereafter they required him to withdraw the writ petition for disbursing the pensionary benefits and accordingly the writ petition was dismissed as not pressed, by Ext.P17 judgment. But since there was a change of stand by the University thereafter, the petitioner filed a review petition as R.P.No.817/2010 wherein this Court observed that the dismissal of W.P.(C) No.33714/2009 as not pressed, will not be taken as a ground to deny his legitimate claim. Thus, the petitioner contends that he is entitled for sanction of monthly pension, commuted value of pension, DCRG and Provident Fund and like other benefits. 4. Heard the petitioner, who appeared in person and learned Standing Counsel for the University, Shri P.C.Sasidharan. The University has filed counter affidavits, explaining their stand. 5. The petitioner submitted that the action of the University in withholding the benefits cannot be justified. It is submitted that a person wpc 17134/2010 3 who has completed 20 years of service, is entitled for voluntary retirement and Rule 56 of Part III KSR provides so. My attention was invited to the judgment of the Apex Court in Dinesh Chandra Sangma v. State of Assam and others {(1977) 4 SCC 441} and a judgment of this Court in W.P.(C) No.1411/2009 in that context. 6. Learned Standing Counsel for the University raised the following contentions: The petitioner was relieved pursuant to the interim order passed in a writ petition, produced as Ext.P12. When the writ petition is dismissed as not pressed, he cannot claim the benefit of the interim order. The University had not granted permission for voluntary retirement. Proceedings were pending against the petitioner for disciplinary action, which mainly related to the delay in taking action in respect of the judgments in certain land acquisition cases. It is pointed out that the order passed in the review petition also cannot be of any advantage to the petitioner. The petitioner will be deemed to have abandoned the service of the University. It is also submitted that the University is empowered to continue the disciplinary action. Even though several notices were issued to him, he did not respond and finally the matter has been placed before the Syndicate and the disciplinary action against the petitioner, is being wpc 17134/2010 4 proceeded with. It is therefore submitted that at this stage the petitioner cannot seek for release of pensionary benefits. 7. The petitioner was earlier employed in Mahatma Gandhi University from 1989. It appears that he joined the first respondent University in 2005 and therefore his service in the first respondent University is only for a period of four years. The petitioner contends that the allegations against him are unsubstantiated and any action without notice to him, cannot be sustained. 8. Before going into the further details, I will examine the merits of the contention of the petitioner that he is entitled for voluntary retirement and the contention of the University that he has abandoned the service because of the non prosecution of the earlier writ petition. 9. The petitioner was relieved from the service of the University as per Ext.P11 order dated 27.1.2010. The said order refers to the interim order passed by this Court, and the direction to execute a bond. Item 5 among the references therein is the submission by the petitioner dated 25/01/2010 along with a bond and the order proceeds to state that the petitioner has executed a bond in favour of the University as directed by the interim order. Finally, it is ordered as follows: “Sanction has, therefore, been accorded by the Vice Chancellor to wpc 17134/2010 5 relieve Sri. Basil A.G., Section Officer (Hr. Gr.) from the service and duties of the SSUS, Kalady w.e.f. 27.1.2010 A.N. subject to the above conditions and subject to the result of W.P.(C) 33714/09, WA 1670/06, WA 1532/06 and W.A. 1702/06 which are pending against Sri A.G. Basil before the Hon'ble High Court of Kerala.” 10. Of course, the relieving from service of the petitioner is subject to the result of W.P.(C) No.33714/2009. The interim order passed by this Court as Ext.P12, para 1 mentions about the contention of the petitioner that he wants to enroll himself as an advocate after obtaining voluntary retirement. Para 2 refers to the counter affidavit of the University. The extracted portion of the counter affidavit reads as follows: “The University could allow the application for Voluntary Retirement of the petitioner only if there is undertaking by the petitioner to co-operate with the proposed enquiry and to recover the loss, if any, found proved against the petitioner from his DCRG. The petitioner need also execute necessary bond to the above effect.” Therefore, the University also was agreeable to allow the application for voluntary retirement but wanted the petitioner to execute a bond for recovering the loss , if any, found proved against him from his DCRG. Para 3 of the interim order records the undertaking by the petitioner that he will co-operate with the proposed enquiry and agrees for recovery of the wpc 17134/2010 6 loss caused, if any, to the University from his DCRG, if the charges are proved. He also agreed to execute a bond. Accordingly, this Court directed the petitioner to appear before the University on 27.1.2010 and the University was directed to get all required papers signed by the petitioner and relieve him on that day itself. Finally, it is observed that such relieving shall be subject to the result of the writ petition and the petitioner's own risk. 11. The crucial question is whether the dismissal of the writ petition as not pressed, will efface the order Ext.P11. Herein, the effect of the order in the review petition is also to be considered. Ext.P11 is dated 27.1.2010. Thereafter, Ext.P16 circular was issued, wherein it is stated that the petitioner was relieved from the duties on 27.1.2010 and accordingly all the sections are requested to quantify the liabilities, if any, against him. The petitioner contends that later he was told that the writ petition will have to be got disposed of, which caused him to file I.A. No.5956/2010. Therein, he has produced Ext.P16 circular herein, as Ext.P22. The prayer is to close the writ petition to enable him to receive the pensionery benefits . 12. The review petition was filed by the petitioner when the University refused to treat him as voluntarily retired from service, which is the stand taken by the University in the counter affidavit filed in this writ wpc 17134/2010 7 petition. This Court observed thus in para 9 of the order in the review petition: “As has been indicated earlier, the prayer in W.P.No.33714/2009 was to direct the University to issue “relieving order to the petitioner immediately on voluntary retirement option exercised by the petitioner.” It is true that the above writ petition was dismissed as “not pressed” without considering the tenability of the contentions raised by the petitioner while seeking voluntary retirement. Even assuming there was any statutory snag or deficiency in the application (Ext.P1) submitted by the petitioner seeking voluntary retirement, the University ought to have shown some magnanimity and directed the petitioner to cure the defect. Anyhow, in the light of the interim order dated January 20, 2010 the application filed by the petitioner can be treated as one seeking voluntary retirement.” Finally, in para 12, it was observed as follows: “However, it is made clear that dismissal of W.P.No.33714/09 as “not pressed” need not be taken as a detriment to the legitimate claim, if any, that may be available to the petitioner to get his retiral/pensionary benefits in accordance with law and the rules and regulations governing the field, subject of course, to the orders that may be passed by this Court in W.P.No.17134/2010.” 13. Learned Standing Counsel for the University submitted that no relief has been granted to the petitioner in the order in the review petition. wpc 17134/2010 8 But, certain crucial findings have been made therein. In fact, in para 9 of the order, this Court was of the view that in the light of the interim order Ext.P12, the application filed by the petitioner can be treated as one seeking voluntary retirement. It was clarified that the dismissal of the writ petition No.33714/2009 as “not pressed” need not be taken as a detriment to the legitimate claim, if any, that may be available to the petitioner to get his retiral/pensionary benefits. Hence, there will not be a legal bar for him to pursue his claims in this writ petition. 14. The stand of the University that the petitioner will be deemed to have abandoned the service, obviously cannot be accepted in the light of the above orders. An abandonment of the service should indicate that there is an intention on the part of the employee to abandon it, for which adequate evidence should be there. Herein, the petitioner filed an application for voluntary retirement on completion of 20 years of service. He was seeking for a retirement since he wanted to enroll himself as a lawyer. True that the University has taken a stand, that, even at that point of time the disciplinary proceedings were pending against the petitioner as he was the Section Officer dealing with the judgments in land acquisition cases and in view of the delay in taking action to deposit the amounts, the University was burdened with payment of more amount as interest. The petitioner wpc 17134/2010 9 contends that he alone was not dealing with the section and so many officers including the Registrar were involved in the decision making process. Whatever that be, I am not going into the merits of those contentions, since it is for the University to take a final decision in the matter. But it can be seen that the petitioner was relieved from service in view of Ext.P12 interim order. Normally, when an interim order is obtained and when the writ petition is withdrawn, the party cannot take advantage of the same. This principle has been restated by the Apex Court in Kalabharati Advertising v. Hemant Vimalnath Narichania (2010 (3) KLT 986 - SC). Herein, apart from the interim order, there are proceedings issued by the University itself relieving the petitioner from service. The question is whether those can be effaced from the records. The order Ext.P11 has not been cancelled or withdrawn by the respondents. 15. In para 9 of the counter affidavit filed by the University in the earlier case which is extracted in Ext.P12, it is averred that the University could allow the application for Voluntary Retirement of the petitioner only if there is an undertaking by the petitioner to co-operate with the proposed enquiry and to recover the loss, if any, found proved against the petitioner from his DCRG. The petitioner need also execute necessary bond to the wpc 17134/2010 10 above effect. On these conditions, this Court directed the petitioner to be relieved on 27.1.2010. He executed various documents also. The University accepted the same as evident from Ext.P11 order and accordingly he was relieved from service. Since he was relieved from service by a competent proceedings issued by the University, it cannot be said that he abandoned the service. 16. Apart from Ext.P12, there are documents like Exts.P11 and P16. Ext.P16 circular will show that he was relieved from service and the University was taking steps to quantify the liability, if any. In between, there is a judgment of a Division Bench of this Court, Ext.P13, noticing the fact that the petitioner has to be relieved based on Ext.P12 interim order. A reading of Ext.P13 judgment shows that the petitioner apprehended that respondents 3 and 4 therein will interfere with the matter when he proceeds to the University on 27.1.2010 to claim the benefits of Ext.P12 order and he sought for grant of police protection. In para 3 of the said judgment, this Court recorded the submission of the learned Standing Counsel for the University which is to the following effect: “The Standing Counsel submits that the University has no objection against the petitioner coming to the University in compliance with Ext.P1 order and claiming the benefits of the said wpc 17134/2010 11 order. The learned Standing Counsel for the University, however, submits that the petitioner will have to comply with the directions in Ext.P1 fully i.e., he will have to execute a bond and sign all required papers.” In para 4, this Court passed the following order: “the directions in Ext.P1 have to be complied with and the petitioner has got to be given opportunity to appear before the University as directed in Ext.P1 order.” Accordingly, police protection was also granted. Ext.P1 mentioned therein is Ext.P12 interim order produced herein. Therefore, evidently the interim order Ext.P12 was directed to be acted upon by Ext.P13 judgment, which has become final. Pursuant to this, the University passed Ext.P11 order. Therefore, even if the writ petition W.P.(C).No.33714/2009 was dismissed as not pressed, there are other independent proceedings which will apply to the situation. The order in R.P.No.817/2010, as noted already, in para 9 stated that “Anyhow, in the light of the interim order dated January 20, 2010 the application filed by the petitioner can be treated as one seeking voluntary retirement.” Therefore, the application of the petitioner for voluntary retirement has to be treated as valid. 17. The defect in the application was that the petitioner's request is dated 8.10.2009 seeking to retire voluntarily from 21.11.2009. Even wpc 17134/2010 12 though in the counter affidavit filed by the University it is stated that the application was rejected, no such proceedings have been produced herein. Even going by the details of the counter affidavit extracted in Ext.P12 interim order, it can be seen that the University had taken the stand that the application can be allowed on certain conditions. The application for voluntary retirement, going by Rule 56 of Part III K.S.R., required three months notice. Herein, after hearing all parties, this Court passed Ext.P12 order. No defect in the application was pointed out as a reason for rejecting the same and this Court also did not consider that the application was defective. The date of relieving is 27.1.2010, after three months of the application. 18. It is pointed out by the learned Standing Counsel for the University that the petitioner is liable to be proceeded against by way of disciplinary action now pending. Herein, the averments in the counter affidavit and in the additional counter affidavit are relevant. In para 5 of the counter affidavit, it is stated that “without concluding the disciplinary proceedings pending against the petitioner, the University is not in a position to disburse the terminal benefits whatever due to him.” Ext.R1(a) dated 14.12.2009 is the order constituting the Enquiry Committee. Reference is made in para 6 of the 93rd meeting of the Syndicate held on wpc 17134/2010 13 30.7.2009 and the discussion was on the loss sustained to the University on account of payment of interest, due to the inordinate delay in payment of compensation in land acquisition cases and it is accordingly Ext.R1(a) decision was taken to constitute an Enquiry Committee to go into the matter. What is contended in para 9 of the counter affidavit, is that “since there is no voluntary retirement sanctioned by the University, the petitioner is not entitled to the pension under Rule 56, Part III of the K.S.R.” In para 10, the requirement of a leave application is pointed out. It is averred that “admitting for arguments' sake that even if these applications for leave are entertained, there still remains the period of unauthorised absence in service from 22.11.2009 to 27.1.2010, the date on which the relieving order was issued in terms of Ext.P12 interim order of this Court, is yet to be regularised and without regularising the whole period of unauthorised absence from 19.10.2009 to 27.1.2010 by a valid application for leave, his pay cannot be ascertained and due to that very reason it is impossible to calculate his pension.” Finally, it is stated in the said para that “it is the duty of the pensioner to submit a duly filled leave application in Form No.13 as prescribed by Rule 113, Part I of K.S.R. for regularising the period of absence for the purpose of calculation of pension, otherwise the pension of the petitioner cannot be calculated.” In para 12, it is stated that the wpc 17134/2010 14 quantified loss is Rs.5,74,750/- and the petitioner is not co-operating with the enquiry and it is further stated that it is the duty of the pension sanctioning authority to finalise the Departmental Enquiry continued under Rule 3 Part III K.S.R. within one year of retirement. Exts.R1(d) to R1(g) are copies of the memo of charges, notices and the reply given by the petitioner. 19. Along with I.A.No.6848/2011, the petitioner has produced Ext.P22 which is a representation submitted by the petitioner along with a leave application in Form No.13 and the acknowledgment receipt issued by the University. The leave application is submitted for the period 22.11.2009 to 27.1.2010 as earned leave remaining in his credit. 20. In the additional counter affidavit filed by the University, the main emphasis is made on the proceedings by way of disciplinary action against the petitioner. It is submitted in para 5 that, in terms of the statutory provision one of the penalty which can be imposed on an employee is recovery of pecuniary loss caused to the University by negligence or breach of orders of the University. Ext.R1(h) is the copy of the memo of charges alleging serious dereliction of duty, negligence in performing the duty and causing financial loss to the tune of Rs.5,74,750/- to the University. It is stated that a committee was constituted consisting of three Syndicate wpc 17134/2010 15 members, who issued notices to the petitioner to appear on different dates and since he did not appear he was declared as ex parte. A report was thereafter submitted which is produced as Ext.R1)(i), and Ext.R1(j) was issued proposing punishment, to which the petitioner submitted an explanation as Ext.R1(k). Ext.R1(l) is the minutes of the Syndicate meeting held on 19.7.2011. The allegation is that in order to escape from the clutches of the disciplinary action, the petitioner submitted the application for voluntary retirement. In para 22 of the additional counter affidavit, it is stated that the entry of the petitioner in service on 6.9.1989 was not in the respondent University, but in Mahatma Gandhi University as a Class IV employee. Subsequently, he came on deputation to the respondent University and became a regular employee on 10.3.2005. It is averred that he has completed only 4 years as a regular employee of the University, though it is true that his previous service also can be reckoned for claiming terminal benefits. 21. The petitioner filed a reply affidavit contending that there was no proper notice to him from the authorities concerned and the decision to set him exparte is also not correct. The petitioner submitted that as he has already executed a bond agreeing for recovery, the finalisation of the disciplinary proceedings need not be a ground to deny the monthly pension, wpc 17134/2010 16 commuted value of pension and provident fund. 22. In this context, it can be seen that now the proposal by the University as evident from Ext.R1(i) is to recover an amount of Rs.3,77,199/- from the gratuity payments from the University and other payments and assets as permissible under law with a further proposal to impose major penalty. Ext.R1(l) is the copy of the minutes of the Syndicate in the meeting held on 19.7.2011, confirming the minutes of the meeting held on 4.7.2011. Petitioner's objections have been discussed. The recommendation of the Standing Committee has been approved. Therein, recommendation is to proceed with the