Annie Francis v. Kerala State Electricity Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE TUESDAY, THE 10TH DAY OF DECEMBER 2013/19TH AGRAHAYANA, 1935 WP(C).No. 19359 of 2012 (T) ---------------------------- PETITIONER: ---------- ANNIE FRANCIS W/O.FRANCIS, MOOLAN HOUSE, GOTHURUTHU P.O PARUR, ERNAKULAM DISTRICT. PIN 683 516. BY ADV. SRI.A.G.BASIL RESPONDENTS: ------------ 1. KERALA STATE ELECTRICITY BOARD VAIDHYUTHI BHAVAN, PATTOM PALACE P.O THIRUVANANTHAPURAM PIN 695 004 REPRESENTED BY ITS SECRETARY. 2. CHIEF ENGINEER (HRM) OFFICE OF THE CHIEF ENGINEER, VAIDHYTHI BHAVAN PATTOM PALACE P.O, THIRUVANANTHAPURAM 695 004. 3. THE EXECUTIVE ENGINEER (ELECTRICAL DIVISION) KERALA STATE ELECTRICITY BOARD, NORTH PARUR PIN 683 516. 4. THE EXECUTIVE ENGINEER (TRANSMISSION CRICLE) KERALA STATE ELECTRICITY BOARD, HMT COLONY KALAMASSERY PIN 683 503. R1-4 BY ADV. SRI.K.S.ANIL, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-09-2013, THE COURT ON 10/12/2013 DELIVERED THE FOLLOWING: ## APPENDIX TO W.P.C.NO.19359 OF 2012 ## PETITIONER’S EXHIBITS EXHIBIT P1: TRUE COPY OF THE RETIREMENT MEMO OF THE PETITIONERS HUSBAND NO.EB2/MEMO/2009-10/607 DATED 31.07.2009 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS HUSBAND. EXHIBIT P2: TRUE COPY OF THE PENSION ORDER NO.V/PPO 38045 DATED 23.11.2009 ISSUED TO THE PETITIONERS HUSBAND BY THE 2ND RESPONDENT. EXHIBIT P3: TRUE COPY OF THE JUDGMENT OF THE DIVISION BENCH OF THIS HONOURABLE COURT DATED 22.01.2010 IN WA NO.2214/2009. EXHIBIT P4: TRUE COPY OF THE GOVERNMENT ORDER NO. GO (P) 4556/79(41) FIN DATED 05.05.1979. EXHIBIT P5: TRUE COPY OF THE ORDER NO.GO(P)NO.1101/87/FIN DATED 22.12.1987 BY THE GOVERNMENT. EXHIBIT P6: TRUE COPY OF THE CIRCULAR NO. 15/88/FIN DATED 15.03.1988 ISSUED BY THE FINANCE (PENSION B) DEPARTMENT, GOVERNMENT OF KERALA. EXHIBIT P7: TRUE COPY OF THE SAID REPRESENTATION DATED 29.12.2011 SUBMITTED BY THE PETITIONER TO THE IST RESPONDENT. EXHIBIT P8: TRUE COPY OF THE JUDGMENT DATED 09.01.2008 OF THE HONOURABLE SUPREME COURT IN DUA S.K. V. STATE OF HARYANA (ILR2008 (2) 677) EXHIBIT P9: TRUE COPY OF THE ORDER B.O.(FB) NO.1664/2002 (ESTT.VII/7629/2002) DATED 10/12/2002 ISSUED BY KERALA STATE ELECTRICITY BOARD. ## RESPONDENTS' EXHIBITS: EXT.R1(a): COPY OF THE JUDGMENT IN W.A.NO.131/2011 DATED 23/06/2011. //TRUE COPY// PA TO JUDGE ## **A.M.SHAFFIQUE, J** ## *** * * * * * * * * * * * *** W.P.C.No.19359 of 2012 ---------------------------------------- Dated this the 10[th] day of December 2013 ## **J U D G M E N T** This writ petition is filed inter alia seeking a direction to the respondents to sanction higher rate of family pension to the petitioner from the date of death of her husband till his attainment of 67 years or seven years from 60 years. 2. The facts involved in the case would disclose that the petitioner's husband Sri.M.K.Francis died on 21/02/2010 after his superannuation on 31/07/2009. His entry in the service of Kerala State Electricity Board (for short ‘KSEB’) as a worker (Mazdoor) was on 01/09/1971. At the time of superannuation, he had 38 years of service. Ext.P2 is the pension order. 3. According to the petitioner, the Pension Rules of Kerala Service Rules (hereinafter referred to as ‘the KSR’) applies and Class IV employees who joined before 1976 were entitled to continue upto 60 years. As per the Rules, if a W.P.C.No.19359 of 2012 2 person dies after retirement at the age of 60 years, his family is entitled to pension at the same rate upto 67 years or for seven years whichever is earlier. According to the petitioner, though such a concession is provided in the KSR, the same is not made applicable by the KSEB. The petitioner relies upon Section 79(c) of the Electricity (Supply) Act, 1948 and the judgment of this Court in **Abdul Jabbar v. KSEB** _[2010(1) KLT 586]_ to indicate the provisions of KSR applies to the employees of KSEB on account of its adoption by KSEB. 3. Petitioner submits that the family pension now sanctioned is only ` 5800 whereas she is entitled to ` 9667 per month. Reference is also made to various Government Orders especially Exts.P4, P5 and P6. Petitioner had submitted Ext.P7 representation which is not considered by the authorities in accordance with law. In the said circumstances, this writ petition is filed inter alia seeking the relief of getting a higher pension as stated above. W.P.C.No.19359 of 2012 3 4. During the pendency of this writ petition, Ext.P9 document is produced which is the Board order dated 10/12/2002 indicating that the Board has decided to make applicable KSR and Kerala State & Subordinate Service Rules and their amendments from time to time to the employees of the Board automatically unless otherwise decided by the Full Board and except in cases which are governed by the Rules stated thereunder. 5. Statement is filed by the 1[st] respondent inter alia stating that KSEB had adopted KSR as per order dated 10/12/2002 and the same has only prospective application. Exts.P4 to P6 Government Orders are not at all adopted by KSEB and therefore the petitioner is not entitled to get the benefit of those Government Orders. Therefore,according to the 1[st] respondent, mere adoption of KSR does not limit the power of the Board to take a decision, that the enhanced pension benefits could be considered to be paid at a later point of time. Reference is also made to the judgment of W.P.C.No.19359 of 2012 4 this court in Writ Appeal No.131/2011 at Ext.R1(a) in which it is inter alia held by this Court that those who were directly recruited to the Board are not entitled to certain benefits that are received by persons who were employed in erstwhile Electricity Department. 6. The short question to be considered in the writ petition is whether the petitioner is entitled for family pension at such rate as has been fixed by the Government from time to time. The petitioner relies upon Exts.P4 to P6 Government orders. Exhibit P4 is a Government order dated 05/05/1979. Among other matters, the Government considered the recommendation of the Pay Commission and approved the recommendation for payment of higher rate of family pension. It is ordered that in the event of death of an employee while in service, the higher rate of family pension will be paid for a period of seven years or till the date on which the employee would have attained the age of 62 years whichever is less. In the event of death after retirement W.P.C.No.19359 of 2012 5 also, higher rate of family pension will be paid up to the date on which the deceased petitioner would have attained the age of 62 years (seven years after retirement at 55 years), had he survived for a period of seven years whichever is less, subject to the condition that the amount of family pension shall not exceed the pension sanctioned to the petitioner. It further indicates that when the amount of pension sanctioned to the deceased is less than the amount of normal family pension admissible, then the amount of family pension payable after his death will be the normal family pension admissible and not the original pension sanctioned to the deceased. Clause 17 of Ext.P4 provides that necessary amendment to the Rules will be issued. 7. By Ext P5, the above Rules were slightly modified indicating that in the case of last grade servants retiring at the age of 60, the higher rate of family pension will be allowed for seven years or till the Government servant would have attained the age of 67, whichever is earlier. The said W.P.C.No.19359 of 2012 6 Government order was to take effect from 30/06/1980 and it was further directed that necessary amendments are to be made in the Service Rules. By Ext.P6 circular dated 15/03/1988, all Heads of Departments/pension sanctioning authorities were requested to send the cases requiring revision as per the Government orders. 8. It is not in dispute that petitioner’s pension was sanctioned in terms with Ext.P2 dated 13/11/2009. It is indicated that the family pension is ` 9,667/- + DR which is applicable for a period of two years upto 13/07/2011 and thereafter at ` 5,800/-+DR per month. It is further indicated that the petitioner has commuted ` 3,866/- from his monthly pension which became absolute on 01/08/2009 and he received an amount of ` 4,55,106/. Hence the pension payable is ` 5,801/- + DR per month. 9. The complaint of the petitioner is that when her husband died on 21/02/2010, instead of the commuted amount, she is entitled for the full pension. The short W.P.C.No.19359 of 2012 7 question is whether the Rules permit such payment or not. 10. It is not in dispute that as per Ext.P9, the provisions of KSR and the amendments from time to time is automatically made applicable to the KSEB, unless otherwise decided and except in cases where they are governed by special regulations of the KSEB. Ext.P9 is dated 10/12/2002 and therefore one cannot dispute the fact that Part III of KSR applies in respect of employees of KSEB as well on account of incorporation by Ext.P9 order. 11. The petitioner will be entitled for a higher rate of pension only if the Rules provide for it. Merely for the reason that the Government has adopted certain method in terms of Exts.P4 to P6 will not be sufficient for the petitioner to claim benefit on the basis of KSR, if the necessary amendments had not been brought into force in the KSR, though Government orders were issued previously. The question would be whether the Government orders at Exts.P4 and P5 had been incorporated in the Rules and W.P.C.No.19359 of 2012 8 whether the Rules provide such a benefit to the petitioner depending upon the Rule position as on the date of death of the petitioner’s husband. 12. Insofar as no provision is brought to my notice in Rule 90 to enable the petitioner to get a higher pension and since the KSEB had not adopted Exts.P4 to P6, I am of the view that incorporation of KSR by the Board as per Ext.P9 order, will not enable the petitioner to seek the relief as prayed for. 13. The representation submitted by the petitioner at Ext.P7 has not been considered by the KSEB so far. Having gone through the averments in the writ petition and in the counter affidavit, I am of the view that the petitioner's claim has to be first decided by the Board. Ext.P7 is a representation submitted by the petitioner which is required to be considered and appropriate orders are to be passed in accordance with law. W.P.C.No.19359 of 2012 9 In that view of the matter, this writ petition is disposed of as under: i) The 1[st] respondent shall consider Ext.P7 and pass appropriate orders within a period of two months from the date of receipt of a copy of this judgment. ii) Before passing such an order, the petitioner shall be given an opportunity to be heard either personally or by engaging a counsel. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.19359 of 2012 10