Asokan T.V. v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 09TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941** **O.P.(CAT).No.88 OF 2018(Z)** **AGAINST THE ORDER IN OA 180/324/2017 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, dt.22.12.2017** ## **PETITIONER/APPLICANT IN OA:** **ASOKAN T.V., AGED 51 YEARS, S/O.VELAYUDHAN T.E, (EX-SAFAIWALA/DEPARTMENT OF LIGHT HOUSE & LIGHT SHIFTS, DEEP BHAVAN, GANDHI NAGAR, KADAVANTHARA P.O., KOCHI-20), RESIDING AT: THOTTATHAN HOUSE, NEAR SAMOOHYA SEVA SANGHAM, CHERAI P.O., PIN.683 514, ERNAKULAM DISTRICT.** **BY ADVS. SRI.T.C.GOVINDA SWAMY SMT.KALA T.GOPI** ## **RESPONDENTS/RESPONDENTS IN OA:** **1 UNION OF INDIA REP. BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF SHIPPING, NO.1 PARLIAMENT STREET, NEW DELHI-110 001.** - **2 THE DIRECTOR GENERAL DEPARTMENT OF LIGHT HOUSES & LIGHT SHIFTS, NEW DELHI-110 001.** **3 THE DIRECTOR, DIRECTORATE OF LIGHT HOUSES & LIGHT SHIFTS, DEEP BHAVAN, GANDHI NAGAR, KADAVANTHARA P.O., KOCHI-682 020.** O.P.(CAT)No.88 OF 2018(Z) : 2 : **4 THE CHIEF ENGINEER (HRM) VYDYUTHI BHAVAN, KERALA STATE ELECTRICITY BOARD, PATTOM, THIRUVANANTHAPURAM-695 004.** **R1-3 BY SRI.P.VIJAYAKUMAR, ASSISTANT SOLICITOR GENERAL R1-3 BY SRI.T.V.VINU, CGC R4 BY ADV. SMT.ANEETHA A.G., SC, KERALA STATE ELECTRICITY BOARD LIMITED** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 09.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(CAT)No.88 OF 2018(Z) : 3 : ## **JUDGMENT** ## **K.Vinod Chandran, J.** The petitioner who is an employee of the KSEB seeks interference to the order of the Central Administrative Tribunal (CAT) which, restricted his claim for pension to three years prior to the filing of the O.A. The learned counsel appearing for the petitioner also relies on Ext.P4 judgment, purportedly a similar case in which the pension was directed to be paid from the date of deemed retirement itself, on the basis of identical rules. But, however, from a different Department - from the Railways. 2. On facts of the case, it has to be noticed that the petitioner joined the Department of Light Houses and Light Ships (hereinafter 'the Department') on 29.12.1995 and continued there till 17.6.2008; for more than ten years which enables him to be considered for minimum pension. The petitioner had resigned from the service only on his obtaining a job in the KSEB for O.P.(CAT)No.88 OF 2018(Z) : 4 : which he had obtained No Objection Certificate from the Department as per Annexure A1. The petitioner joined KSEB on 18.6.2008. He had applied for reckoning the prior service with the Department for the purpose of determining pensionable service in the KSEB. He is said to have agitated the cause for very many years by making repeated representations to the Department and the KSEB, which eventually the petitioner gave up. 3. The petitioner then sought for deeming the service of the petitioner in the Department as possible of being considered for minimum pension especially, since he had served for more than ten years. A representation was made and O.A. was filed before the Tribunal, which has ended in the order impugned in the above writ petition. The Tribunal confined the pension to three years prior to the date of filing of the O.A. 4. It is also to be noticed that in a similar case which we had disposed of today by O.P(CAT)No.91 of 2018, the petitioner therein, almost similarly situated but with different dates of resignation and joining in O.P.(CAT)No.88 OF 2018(Z) : 5 : the KSEB, had made similar prayers in which also the payment of pension was confined to three years prior to the filing of the O.A. However, before us in that O.A. a different stand was taken by the Department insofar as expressing their willingness to pay the pro-rata pension. This was accepted by the KSEB also since as on the date of joining of the petitioner therein, the Board had not changed its status. As at the time of joining of the petitioner herein, the statutory Board has undergone a change in status and has been instituted as a Company. In that circumstances, the existing rules in the Company does not permit the prorata pension payment for the purpose of reckoning the past service in the Central Government Department for pensionary benefits from the KSEB. 5. We now have to look at the restriction made by the Tribunal to three years prior to the filing of the O.A. The compelling argument raised by the learned counsel for the petitioner is based on Ext.P4 judgment of a Division Bench of this Court. It is argued that O.P.(CAT)No.88 OF 2018(Z) : 6 : in an identical situation on the basis of identical rules, the consideration was made by the Division Bench and pension was allowed from the date of deemed resignation. We see that the applicant therein had resigned from Railways on 18.9.1991 having obtained a No Objection Certificate and subsequently joined the KSEB. Immediately on his resignation, the applicant had submitted Annexure A5 representation dated 6.5.1992 for disbursing the pensionary benefits in respect of the service already rendered by him for more than 11 years, as permissible under the relevant rules and norms. More so, by virtue of the mandatory Rule 53 of the Railway Services (Pension) Rules, 1993. In this context, we have to notice that there the applicant had sought for pensionary benefits while here the claim was for payment of pro-rata pension for the purpose of reckoning the past service in the Department. Again, when a Pension Adalath was constituted by the Central Government, the applicant in that case had made an application on 16.12.2002 for the purpose of O.P.(CAT)No.88 OF 2018(Z) : 7 : consideration of his case. This was declined by the Railways on the ground that KSEB being not a Central Government undertaking cannot be summoned in a Pension Adalath constituted by the Central Government/Railways. Simultaneous to the above proceedings, the petitioner therein had also taken up the matter with the KSEB, who took up the matter with the Railways for effecting pro-rata pension. While such proceedings were pending, the petitioner therein came across certain orders passed by the Tribunal on similar circumstances wherein the resigned employees, who joined the KSEB were allowed pension deeming his resignation as retirement from the date of the resignation. It was in that circumstances, the learned Judges found that the petitioner therein was constantly at it and the refusal of the Railways to respond initially and then in the negative; kept the issue alive in all these years. 6. We take a different view in the instant case, especially since the claim always was for consideration of pro-rate pension for counting the service in the O.P.(CAT)No.88 OF 2018(Z) : 8 : Central Government as pensionable service by the subsequent employer; the KSEB. The Department was never approached with even a representation for pension deeming the resignation as a retirement; atleast as an alternate prayer. Only on the repeated attempts to get reckoned the past service, having failed, the petitioner decided to give up the said claim and seek for deemed retirement so as to make him eligible for minimum pension. This was by Annexure A7 as produced before the Tribunal in the O.A. on 15.3.2017. It was at that stage, based on Annexure A7 representation that the KSEB through official channel forwarded the claim for pro-rata pension. It is at this juncture, the petitioner turned around and filed Ext.A7 representation for consideration of the prayer for minimum pension deeming his past service as pensionable service in the Department itself. It is later to that the O.A. was filed in the year 2017 itself. 7. In such circumstances, we feel that the case is not similar to the one in Ext.P4 and is regulated by O.P.(CAT)No.88 OF 2018(Z) : 9 : the judgment of the Honourable Supreme Court in _**Union of India and others v. Tarsem Singh [2008 (6) SCC 648]** ._ We hence do not find any reason to interfere with the order of the Tribunal and reject the O.P. We direct the Department to process the pension of the petitioner and comply with the orders of the Tribunal, at any rate, within three months from the date of receipt of the certified copy of this judgment and pay the entire arrears due to the petitioner starting from three years prior to the filing of the O.A. **sd/K.VINOD CHANDRAN JUDGE** **sd/V.G.ARUN JUDGE** jes O.P.(CAT)No.88 OF 2018(Z) : 10 : ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF ORDER OF THE LEARNED CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN OA NO.180/00324/2017 DATED 22ND DECEMBER, 2017.** - **EXHIBIT P2 TRUE COPY OF THE ORIGINAL APPLICATION NO.180/00324/2017 DATED 02.04.2017 FILED BEFORE THE LEARNED CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, ALONG WITH ITS ANNEXURES.** - **ANNEXURE A1: A TRUE COPY OF LETTER BEARING NO.I-3/268/95ESTT DATED 13.12.2007 ISSUED BY THE 3RD RESPONDENT.** - **ANNEXURE A2: A TRUE COPY OF OFFICE ORDER BEARING NO.I3/268/95-EST DATED 17TH JUNE 2008, ISSUED BY THE 3RD RESPONDENT.** - **ANNEXURE A3: A TRUE COPY OF RELIEVING ORDER BEARING NO.MLH/5/ADMN/2007-08 DATED 17.06.2008 ISSUED BY THE HEAD LIGHT KEEPER, MANAKKODAM LIGHT HOUSE, ANDHAKARANAZY.** - **ANNEXURE A4: A TRUE COPY OF LETTER BEARING NO.EB2/PRIOR SERVICE/2010-11 DATED 29.12.2010 ISSUED BY THE EXECUTIVE ENGINEER KSEB/NORTH PARUR.** - **ANNEXURE A5: A TRUE COPY OF REPRESENTATION DATED 22.10.2016 ADDRESSED TO THE EXECUTIVE ENGINEER, KSEB, ALUVA.** - **ANNEXURE A6: A TRUE COPY OF REPRESENTATION DATED 07.02.2017 ADDRESSED TO THE 4TH RESPONDENT.** - **ANNEXURE A7: A TRUE COPY OF REPRESENTATION DATED 15.03.2017 ADDRESSED TO THE 3RD RESPONDENT.** O.P.(CAT)No.88 OF 2018(Z) : 11 : **ANNEXURE A8: A TRUE EXTRACT OF RULE 37 OF THE CCS (PENSION)RULES AS CONTAINED IN PAGES 87 AND 88 OF THE SWAMY'S PENSION COMPILATION, 2013 EDITION.** - **EXHIBIT P3 TRUE COPY OF REPLY STATEMENT DATED 09.11.2017 FILED BY THE RESPONDENTS 1 TO 3 IN OA NO.180/00324/2017.** **ANNEXURE R1 TRUE COPY OF THE LETTER NO.EB5/GENL.201617/2209 DATED 06.03.2017 FROM THE 4TH RESPONDENT TO THE 3RD RESPONDENT.** **ANNEXURE R2 TRUE COPY OF THE LETTER NO.1-13/268/95 DATED 24.05.2017 BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF JUDGMENT IN OP(CAT)NO.1073/2010 DATED 29.11.2016 OF THIS HON'BLE COURT.** - **EXHIBIT P5 A TRUE COPY OF ORDER DATED 19TH MARCH 2018 IN MA NO.180/00324/2018 IN IA NO.180/00324/2017 RENDERED BY THE LEARNED TRIBUNAL.** - **EXHIBIT P6 A TRUE COPY OF ORDER DATED 21 MAY 2018 IN MA NO.180/00549/18 IN IA NO.180/00324/2017 RENDERED BY THE LEARNED TRIBUNAL.** - **EXHIBIT P7 A TRUE COPY OF ORDER DATED 22ND JUNE 2018 IN MA NO.180/00549/18 IN IA NO.180/00324/2017 RENDERED BY THE LEARNED TRIBUNAL.** - **EXHIBIT P8 A TRUE COPY OF ORDER DATED 18 SEPTEMBER 2018 IN MA NO.180/1026/2018 IN IA NO.180/324/2017 RENDERED BY THE LEARNED TRIBUNAL.** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R1 a TRUE COPY OF THE LETTER NO. PA GL/354/2381/ASOKAN T.V./2018-19/SL.25R1 DATED 15.10.2018 ISSUED BY THE CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD LIMITED.** O.P.(CAT)No.88 OF 2018(Z) : 12 : **EXHIBIT R1 b TRUE COPY OF THE LETTER NO. EB4/GEN/201718/23031 DATED 16.03.2018 ISSUED BY THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KERALA STATE ELECTRICITY BOARD LIMITED, ALUVA** - **EXHIBIT R1 c TRUE COPY OF THE OM NO.4(5) PENSION UNIT /79 DATED 09.01.1984 ISSUED BY THE DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVERNMENT OF INDIA.** - **EXHIBIT R1 d TRUE COPY OF THE OM NO.4(12)/85-P&PW DATED 31.03.1987 ISSUED BY THE DEPARTMENT OF PENSION AND PENSIONERS WELFARE, GOVERNMENT OF INDIA.** - **EXHIBIT R1 e TRUE COPY OF THE OM NO, 28016/5/85 ESST.(C) DATED 31.01.1986 ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING, GOVERNMENT OF INDIA.** - **EXHIBIT R1 f TRUE COPY OF THE OM NO. 4/43/88P & PW (D) DATED 16.10.1989 ISSUED BY THE DEPARMTNET OF PENSION AND PENSIONERS WELFARE,GOVERNMENT OF INDIA** **==> picture [106 x 11] intentionally omitted <==** P.S. to Judge