A. Abdul Latheef v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942** ## **WP(C).No.13237 OF 2012(D)** ## **PETITIONER:** **A.ABDUL LATHEEF AGED 58 YEARS SON OF AOUKKARUKUTTY, EXECUTIVE ENGINEER (RETIRED), KERALA STATE ELECTRICITY BOARD, ELECTRICAL DIVISION NADAPURAM, (RESIDING AT AYYAMVELIL VEEDU P.O.VADAKKUMTHALA EAST, KARUNAGAPPALLY)** ## **BY ADV. SRI.V.A.MUHAMMED** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT POWER DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VAIDYUTHI BHAVAN, PATTOM PALACE, THIRUVANANTHAPURAM-695 004.** - **3 THE CHIEF ENGINEER (HUMAN RESOURCES MANAGEMENT) KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVAN, PATTOM PALACE, THIRUVANANTHAPURAM-695 004** - **4 THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF TELECOMMUNICATIONS, CENTRAL SECRETARIAT, NEW DELHI-110 064.** - **5 THE CONTROLLER OF COMMUNICATIONS KERALA CIRCLE, THIRUVANANTHAPURAM-695 033.** - **6 THE PRINCIPAL GENERAL MANAGER TELECOMMUNICATIONS, BHARAT SANJAR NIGAM LIMITED BHAVAN, UPPALAM ROAD, STATUTE JUNCTION, THIRUVANANTHAPURAM-695 023.** **WP(C).No.13237 OF 2012 2** **R1 BY ADV. SRI.P.PARAMESWARAN NAIRASG OF INDIA R1 BY SRI.K.KESAVANKUTTY, SC, BSNL R1 BY SRI.K.S.ANIL, SC, KSEB R1-2 BY ADV. SRI.M.K.THANKAPPAN, SC, KERALA STATE ELECTRICITY BOARD LIMIT R4 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA R6 BY SRI.MATHEWS K.PHILIP, SC, BSNL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.13237 OF 2012 3** ## **JUDGMENT** The petitioner says that he retired from the services of the Kerala State Electricity Board (KSEB) while working as an Executive Engineer and that before he joined its services, he had served the Department of Telecommunications, Government of India, during the period from 12.01.1980 to 21.11.1989. 2. The petitioner claims that he is entitled to have his pensionary benefits revised by the KSEB, reckoning the period he spent in the services of the Department of Telecommunications also. He says that however, this has been rejected through Ext.P13, for the reason that the pro-rata pension has not been remitted by the Department of Telecommunications and that this requirement can be exempted only between the Central Government and State Government and not between the Central Government and the KSEB, because they are a **WP(C).No.13237 OF 2012 4** statutory body incorporated under the provisions of the Electricity (Supply) Act, 1948. 3. The petitioner, therefore, prays that Ext.P13 be set aside and the KSEB be directed to revise his pensionary benefits, reckoning his past service in the Department of Telecommunications also. 4. In response to the submissions of the petitioner, the learned Standing Counsel for the KSEB - Sri.M.K.Thankappan, submitted that payment of pension to the employees of the KSEB is governed by order dated 01.09.2005, namely Ext.P16, wherein it has been stipulated that prior service rendered in the departments of Government of India by Board employees will be reckoned for the purpose of pension in the Board, only on realization of the pro-rata pension liability from such departments. 5. In contending so, the learned Standing Counsel also relied upon the ## **WP(C).No.13237 OF 2012 5** subsequent judgment of a Full Bench of this Court in O.P.(KAT)No.277/2018 and argued that, as per the declarations therein, the past service of the petitioner in the Central Government department cannot be automatically reckoned for the purpose of pension and other benefits payable by the KSEB. The learned Standing Counsel, therefore, contended that Ext.P13 is irreproachable, and prayed that this writ petition be dismissed. 6. I have examined Ext.P13, which is the order impugned in this writ petition and it only says that, unless the Department of Telecommunications pays the pro-rata pension to the KSEB, they will not be in a position to revise the pensionery benefits of the petitioner. They explain this by saying that, as per Government of India decision Nos.4 and 5 below Rule 14 of the Central Civil Services (Pension) Rules, 1972, sharing of pension can be dispensed with ## **WP(C).No.13237 OF 2012 6** only between the Central Government and the State Government; but that this will not apply to the KSEB, which is a statutory body constituted under the provisions of the Kerala Electricity (Supply) Act,1948. 7. That said, however, it is conceded that the KSEB has adopted all the Orders of Government of Kerala with respect to its employees but it is still contended that they are not responsible for paying pension to an employee who had spent service earlier in a Central Government department, because the afore mentioned Government of India decisions would not apply to them. 8. However, it has to be borne in mind that these issues had been considered by a learned Single Judge of this Court in _**Babu**_ _**M. Poulose v. Kerala State Electricity Board**_ **[2014(2) KHC 187],** wherein, requirement of pro-rata pension being remitted by a Central Government undertaking was considered and answered thus in **WP(C).No.13237 OF 2012 7** Paragraph 7 thereof: “ _7. So, the statutory amendment to Note 2 of Rule 11 of Part III KSR as contained in SRO No.96/2006 will apply to the employees of the Kerala State Electricity Board. No provisions by way of orders of the Full Board have been shown to me to establish that the Full Board of the Electricity Board has taken any decision expressly making inapplicable the aforementioned provisions of the SRO No.96/2006. Then the question is whether the retrospectivity of 12.11.2002 ordered in SRO 96/2006 will automatically apply to the respondent Electricity Board. Prior to Ext.P10 Board Order dated 10.12.2002, the decision was that the amendment issued to KSR by Government will not automatically apply to the Board employees unless the amendments are specifically ordered to be adopted by the Board. But, in view of the provisions in Ext.P10 Board Order dated 10.12.2002, Board has decided to apply the provisions of KSR and their amendments from time to time unless otherwise decided by the Full Board. Therefore, this decision of the Board to automatically apply the provisions of KSR and their amendments from time to time, can be said to have come into force only on 10.12.2002.Hence, the applicability of the amendment to Note 2 of Rule 11 of Part III KSR as per SRO No.96/2006 can be said to have come into force only on 10.12.2002 as far as its applicability to Kerala State Electricity Board is concerned and not with effect from 12.11.2002 as in the case of the State Government Departments. At any rate, in view of Ext.P10 dated 10.12.2002, the amended provision of Rule 11 Note 2 is applicable to the respondent Electricity Board much prior to the issuance of the impugned Ext.P7 Board Order dated 1.9.2005. Even if S.R.O. No.96/2006 is held to have only prospective effect from the date of its publication, viz., 2.2.2006, as far its applicability to the employees of the Board is concerned, still the petitioners will get the benefit of that provision, as they continued in service much thereafter. True that the impugned Ext.P7 Board Order dated 1.9.2005 was issued only on the basis of G.O.(P) dated 12.11.2002 and without noting the_ ## **WP(C).No.13237 OF 2012 8** _substantial changes made to the Government Order dated 12.11.2002 by virtue of the subsequent Government Order issued as per Government Order dated 6.12.2003. But as the impugned clause (1) of Ext.P7 Board Order dated 1.9.2005 is in conflict with the statutory provision in Note 2 of Rule 11 of Part III KSR as amended by SRO No.96/2006, I have no hesitation to hold that the impugned clause (1) of Ext.P7 Board Order dated 1.9.2005 is ultravires. It is also to be noted that it is provided in the aforementioned SRO 96/2006 that in the case of employees who left the former service in Central Public Sector undertakings, this benefit will be applicable only if the former employer remits the share of proportionate prorata pension liability on a service share basis. But, this insistence for payment of pro-rata pension liability is only in a case where the former employer happens to be a Central Public Sector undertaking. But in a case where the former employer is a Department of the Government of India, the full benefit of SRO 96/2006 will accrue to such employees and there is no question of compulsion on the former employer to remit the share of the proportionate pro rata pensionary liability on a service share benefit. Therefore, as ordered by the Government of India and the Government of Kerala, as far as an employee of the Government of India department, who, on his own volition leaves that employment to take up a regular employment in a Department under the Government of Kerala or under the respondent Electricity Board is concerned, the full pensionary liability pertaining to that employee has to be borne by the employer/organisation to which the employee permanently belongs at the time of retirement and no recovery of proportionate pension will be made from the Central Government/State Government under whom he has served earlier.”_ 9. Subsequently, a learned Full Bench of this Court, in O.P.(KAT)No.277/2018, considered the issue as to whether the ## **WP(C).No.13237 OF 2012 9** applicable Government Orders would permit reckoning of service spent by an employee of the Government of Kerala in Government Autonomous Bodies and State Public Sector undertakings, as qualifying service for the purpose of pension and DCRG, and held that it was not permissible. 10. However, the question as to whether the service of an employee in a Central Government or Central Government Department can be reckoned as qualifying service for pension and other retiral benefits in the KSEB has not been considered in the said judgment. 11. Having said that, since in _**Babu**_ _**M.Poulose**_ (supra), a learned Judge has already found as afore, I am of the view that the KSEB should have taken into account the ratio in the said judgment also, before they had rejected the petitioner's request, as has been done in Ext.P13. Since Ext.P13 has been issued in the year 2008, much **WP(C).No.13237 OF 2012 10** before the judgment _**Babu M.Poulose**_ (supra), I am certain that entire matter requires to be considered by the competent Authority of the KSEB at the earliest. In the afore circumstances, I order this writ petition and set aside Ext.P13; with a consequential direction to the competent Authority of the KSEB to reconsider the petitioner's claim for reckoning his past service in the Department of Telecommunications for pension and other retiral benefits, after affording him an opportunity of being heard - either physically or through video conferencing – thus culminating in an appropriate order thereon, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. Needless to say, while completing the afore exercise, the Authority of the KSEB will be at full liberty to decide whether the afore mentioned Full Bench judgment ## **WP(C).No.13237 OF 2012 11** applies to the KSEB and also whether the ratio in _**Babu M.Poulose**_ (supra) would bind them. For this purpose, I make it further clear that my observations in this judgment are not conclusive, but are only p _rima facie,_ intended solely to facilitate delivering this judgment and nothing else. **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** **MC/22.2.2021** **WP(C).No.13237 OF 2012 12** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RELIEVING MEMO ISSUED BY THE KSEB DTED 30.11.2010** **EXHIBIT P2 TRUE COPY OF THE MEMO NO.EB2/452/88 OF THE KSEB DATED 13.11.1989.** **EXHIBIT P3 TRUE COPY OF THE CERTIFICATE ISSUED BY THE BHARAT SANCHAR NIGAM LTD. DTD 22.10.2005.** - **EXHIBIT P4 TRUE COPY OF THE RECEIPT DTED 21./09.1988. EXHIBIT P5 TRUE COPY OF LETTER NO. EB/4/90-91/32 OF THE EXECUTIVE ENGINEER DATED 07.4.1990.** - **EXHIBIT P6 TRUE COPY OF COMMUNICATION NO. GPF.13/TA/89-90/1338 OF THE KSEB DATED 21.07.1990.** - **EXHIBIT P7 TRUE COPY OF THE COMMUNICATION OF THE BHARAT SANCHAR NIGAM LTD. DATED 25.2.2006.** - **EXHIBIT P8 TRUE COPY OF THE COMMUNICTION OF THE KERALA STATE ELECTRICITY BOARD DATED 05.11.2007** - **EXHIBIT P9 TRUE COPY OF THE COMMUNCATION NO. ST.839/TECH./2001/07/10 OF BSNL DATED 15.12.2007.** - **EXHIBIT P10 TRUE COPY OF THE COMMUNICATION NO. CCA/KRL/1-55/05-06/3 DATED 08.02.2008 OF THE ACCOUNTS OFFICER, DEPPARTMENT OF TELECOMMUNICATIONS.** - **EXHIBIT P11 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE CHIEF ENGINEER DATED 14.3.2008.** - **EXHIBIT P12 TRUE COPY OF THE PENSION PAYMENT ORDER OF THE KSEB DATED 23.4.2011.** - **EXHIBIT P12A TRUE COPY OF THE LETTER OF THE CHIEF ENGINEER, KSEB DATED 28.4.2011.** **EXHIBIT P13 TRUE COPY OF THE COMMUNICATION OF THE KERALA STATE ELECTRICITY BOARD DATED 22.08.2008. EXHIBIT P14 TRUE COPY OF THE GO.(P) NO.369/87/FIN. DATED 31.3.1987 OF THE GOVERNMENT.** **WP(C).No.13237 OF 2012 13** **EXHIBIT P15** **TRUE COPY OF THE B.O.NO.ESTT.IV/16033/87 OF THE KSEB DATED 25.07.1989.** **EXHIBIT P16 TRUE COPY OF THE BO. (FB)NO.2574/2005(ESTT.IV)/RECKONING SERVICE/2005) OF THE KSEB DTED 01.09.2005.** **RESPONDENT'S/S EXHIBITS: EXHIBIT R3(a) TRUE COPY OF THE ORDER DATED 30.05.1995 EXHIBIT R3(b) TRUE COPY OF THE MEMO DATED 27.06.2012**