IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 OP.No. 5879 of 2002(Y) ---------------------- PETITIONER(S): --------------- S.MOHAMMED YOUSEF, PLANT ENGINEER, MALABAR CEMENTS LIMITED, WALAYAR POST, PALAKKAD-678 624. BY ADV. SRI.R.RAJASEKHARAN PILLAI SRI.M.S.NISHAD RESPONDENTS: ---------------- 1. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF SURFACE SHIPPING AND SURFACE TRANSPORT NEW DELHI. 2. THE DIRECTOR GENERAL, BORDER ROADS, KASHMIR HOUSE, NEW DELHI. 3. THE COMMANDER, HEADQUARTERS, 47 BORDER ROADS, TASK, C/O.99 APO. 4. THE CONTROLLER OF DEFENCE ACCOUNTS (PENSION), DRAUPATI GHAT, ALLAHABAD. 5. THE OFFICER IN CHARGE, RECORDS OFFICE, GREF DIGHI CAMP, PUNE. 6. THE DEFENCE PENSION DISBURSING OFFICER (DPDO), TRIVANDRUM. ADV. SRI.P.S.SREEDHARAN PILLAI, SCGSC SRI.THOMAS MATHEW NELLIMOOTTIL FOR R 1TO 6 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 14/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No.5879/2002 2 APPENDIX PETITIONERS EXHIBITS; EXT.P1: COPY OF THE APPOINTMENT ORDER DATED 11.11.83 OF THE PETITIONER IN MALABAR CEMENTS LTD. EXT.P2: COPY OF THE DISCHARGE CERTIFICATE OF THE PETITIONER DATED 22.2.1984. EXT.P3: COPY OF THE JUDGMENT IN O.P.NO.7615/1994 DATED 28.9.2000 OF THIS HON'BLE COURT. EXT.P4: COPY OF THE PENSION PAYMENT ORDER ISSUED BY THE 4TH RESPONDENT. EXT.P5: COPY OF THE LETTER ADDRESSED TO THE 6TH RESPONDENT BY THE 4TH RESPONDENT DATED 16.6.2001. EXT.P6: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE MINISTER OF THE 1ST RESPONDENT. EXT.P7: COPY OF THE LETTER DATED 15.2.2002 FROM THE OFFICE OF 64 ROAD, CONSTR COY(GREF) C/o.99 APO. RESPONDENTS EXHIBITS: EXT.R1: COPY OF APPLICATION NO.109837 DATED 10.5.1984 SUBMITTED BY THE PETITIONER. EXT.R2: COPY OF LETTER NO.109837/SMY/385/56/E1 DATED 11.11.1985. EXT.R3: COPY OF LETTER NO.11209/64/28/EIC DATED 27.1.2001. EXT.R4: COPY OF PENSION PAYMNET ORDER NO.PPO NO.C/GREF/08/2001 DATED 20.2.2001. EXT.R5: COPY OF LETTER NO.11209/SMY/64/55/EIC DATED 17.1.2002. TRUE COPY P.A. TO JUDGE S.SIRI JAGAN, J - - - - - - - - - - - - - - - - - - - - - - - O.P. No.5879 of 2002 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of January, 2009 J U D G M E N T The petitioner was originally a member of the GREF, which is the part of the military service. He was appointed on deputation for the period from 1980-83 in Malabar Cements Ltd. Thereafter by Ext.P1 order dated 11.11.1983, he was absorbed permanently in the Malabar Cements Ltd. Subsequently, he retired from service. For the period of service in the military, he is entitled to pro-rata pension. However, for the purpose of qualifying service, the service put in the Malabar cements during the period of deputation was excluded, although during that time his lien was retained in the GREF. The petitioner submits that he is entitled to have the service in Malabar cements on deputation also reckoned as qualifying service for the purpose of pension from GREF. It is under the above circumstances, he has filed this writ petition seeking the following reliefs: “I. Issue a writ of mandamus or other appropriate writ order or direction commanding the respondents to recompute the petitioners Pro-rata pension reckoning his qualifying service as 17½ years as against 13½ years as sanctioned in Ext.P4 as expeditiously as possible. II. Issue a writ of mandamus or other appropriate writ order or direction commanding the respondents to sanction and disburse O.P. No.5879 of 2002 - 2 - the petitioners retirement gratuity from the General Reserve Engineer Force as expeditiously as possible along with 18% interest from 6-12-1983 till the date of actual disbursement.” 2. In the counter affidavit filed on behalf of respondents 1 to 6, it is stated as follows in paragraphs 5,7 and 10 : “5. It is respectfully submitted that it may, however, be noted that neither the employer of the petitioner nor the petitioner himself has paid the leave salary or pension contribution, as per prescribed procedure to the Government. The monthly rate of Leave Salary contribution in respect of all classes of Govt. Servants governed by the CCS(Leave) Rules is 11% of pay drawn in foreign service. The prescribed rates of monthly pension contribution as percentage of the maximum pay of the post in the officiating/substantive grade, held by the Govt. Servant at the time of proceeding on foreign service is also liable to be recovered. 6. xxx xxx xxx xxx xxx 7. It is respectfully submitted that subject to payment of leave salary and pension contribution at the prescribed rates, for the period of deputation with the M/s. Malabar Cements Ltd. The petitioner is entitled to pro-rata pension and gratuity upto the date of discharge, which can be paid on due authorisation by PCDA, Allahabad. The details of leave salary and pension contribution required to be paid by the petitioner can be calculated only on receipt of pay drawn by the petitioner as on 08.08.1980 and 05.12.1983 with pay scale from M/s. Malabar Cements Ltd. Palghat, Kerala. 8. xxx xxx xxx xxx xxx 9. xxx xxx xxx xxx xxx 10. It is humbly submitted that as already mentioned, the entire period of service of the petitioner including the lien period can be counted as qualifying service for the purpose of pro-rata pension and gratuity subject to payment of leave salary and pension contribution at prescribed rates. PCDA, Allahabad is the concerned authority who authorise payment. A sum of Rs. 6031.00(Rs.6081.00 (-) Rs.50-00 (Demand) Rs.6031.0) has since been released by PCDA (P) Allahabad vide their Corrigendum PPO No. C/GREF/CORR/18/2002 dated 16 Jul 2002 issued vide their letter No. GI/C/GREF/42466/VI/Claim/6-02 dated 17 Jul 2002 (Photo copy attd). towards gratuity.” O.P. No.5879 of 2002 - 3 - 3. The petitioner submits that he is prepared to pay leave salary and pro-rata pension contributions as required in the counter affidavit. In the above circumstances, the writ petition is disposed of with the following directions: 4. If the petitioner pays the leave salary and pro-rata pension contribution along with a certificate from the Malabar cements Ltd. regarding the pay drawn by the petitioner as on 8.8.1980 and 5.12.1983, the competent among the respondents shall pass appropriate orders regarding inclusion of the service on deputation in the Malabar cements also as qualifying service for the purpose of payment of pension to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of the same from the petitioner. The petitioner shall also be paid arrears of pension within a period of one month therefrom. S.SIRI JAGAN, JUDGE rhs