Balakrishnan Nair P. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942** ## **WP(C).No.13688 OF 2014(I)** ## **PETITIONER:** **BALAKRISHNAN NAIR P., AGED 81, S/O. LATE KRISHNAN NAIR.C., RESIDING AT MB NIVAS, ANAMANGAD.P.O., PERINTHALMANNA, MALAPPURAM DISTRICT.** **BY ADVS. SRI.K.SHIBILI NAHA SRI. SAJAL P.E.** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| ||**GENERAL EDUCATION DEPARTMENT,**| ||**THIRUVANANTHAPURAM-695 001.**| |**2**|**DIRECTOR OF PUBLIC INSTRUCTION,**| ||**THIRUVANANTHAPURAM-695 001.**| |**3**|**DEPUTY DIRECTOR OF EDUCATION,**| ||**MALAPPURAM-673 001.**| **BY ADV.SRI.P.M.MANOJ - SR. GP.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No.13688 OF 2014(I)** **-2-** ## **JUDGMENT** **Dated this the 18th day of February 2021** The petitioner, who is now more than 87 years in age, has filed this writ petition seeking that respondents be directed to disburse minimum pension for his service, which he rendered from 02.06.1951 to 31.05.1962 as Assistant Teacher in “A.M.U.P. School”, Eravimangalam, Malappuram. 2. The petitioner concedes that in the year 1962, he relieved himself from service and went to Bhutan to take up employment as a teacher and he returned only in the year 1977, owing to ill health and to take care of his parents. His learned counsel, however, admitted that even after 1977, the petitioner did not rejoin duty but took up another employment. 3. The pleadings on record show that in the year 1993, the petitioner made a representation, namely Ext.P1, to the Government seeking that he be granted minimum pension taking note of more than 10 years of service, which he had offered between 1951 and 1962. ## **WP(C).No.13688 OF 2014(I)** **-3-** However, this request was rejected through Ext.P6 by the Government, saying that since the petitioner had left the School without obtaining permission from any of the competent Educational Authorities, it can only be deemed to be a resignation and therefore, that he is not entitled to any benefit, including minimum pension. They have relied on the provisions of Rule 56(4) of Chapter XIVA of the Kerala Education Rules (for short ‘the KER’), in holding so, since it provides that when a teacher is absent from duty for a continuous period of five years with or without leave, it can only be considered as resignation; and that as a corollary, Rule 29(a) Part III of the Kerala Service Rules (KSR), would cause his entire service to stand forfeited. 5. The petitioner impugns Ext.P6 saying that, at the time when he was relieved from service in the year 1962, there were no provision to provide for long leave or to seek permission to take up employment abroad and therefore, that the aforementioned provisions mentioned in Ext.P6 cannot be applied in ## **WP(C).No.13688 OF 2014(I)** **-4-** his case. 6. I have heard Sri.K.Shibili Naha - learned counsel for the petitioner and the learned Senior Government Pleader – Sri.P.M.Manoj, appearing for the official respondents. 7. The undisputed facts on record would show that the petitioner had worked in the School in question between 02.06.1951 and 31.05.1962. Thereafter, he relieved himself from duty to take up employment abroad, but never rejoined the School thereafter. The Authorities, therefore, took a stand that this can only be treated as resignation and therefore, that the petitioner is not entitled to any relief, as has been prayed, including for minimum pension. 8. At first blush, the stand adopted by the Authorities cannot be found to be in error. But the fact also remains that no action had been taken against the petitioner by any of the competent Authorities, when he went abroad for seeking other employment. It is also fairly clear that, in the year ## **WP(C).No.13688 OF 2014(I)** **-5-** 1962, there were no provisions under which a teacher could have been relieved for taking up employment abroad or for grant of leave for such purpose. Therefore, the question arises as to how the petitioner's absence from duty after 1962 had been dealt with. 9. As I said above, the Authorities have taken the view that it should be treated as deemed resignation and therefore, that his past service would stand forfeited. 10. However, Sri.Shibili Naha, brings to my notice the judgment of the Honourable Supreme Court in **Asger Ibrahim Amin v. Life Insurance Corporation of Inida** [2016 13 SCC 797], to assert that, in almost similar circumstances, the Hon'ble Court has held that the petitioner would have to be construed as having taken voluntary retirement. He, however admitted that there were no provisions for voluntary retirement in the applicable Rules and Regulations at the time when his client left employment, to take up an engagement outside India. But, he still contended that the ## **WP(C).No.13688 OF 2014(I)** **-6-** judgment afore cited, would certainly have some bearing on his client's case. 11. When I consider the afore submissions, and advert to the fact that the petitioner is now in the winter years of his age, I am certain that he must be given an opportunity of establishing his case appropriately before the competent Authorities. This is more so because, the petitioner submits that he is now facing penury and that even a small sum of pension would hold him in good stead in future years. In the afore circumstances, I order this writ petition, however, without setting aside Ext.P6, but leaving liberty to the petitioner to approach the Government with a representation based on afore cited judgment of the Hon'ble Supreme Court; and if this is done within a period of two weeks from the date of receipt of a copy of this judgment, same shall be considered by it, after affording an opportunity of being heard to the petitioner's authorized representative - either physically or through video conferencing - leading to an appropriate order thereon ## **WP(C).No.13688 OF 2014(I)** **-7-** - as expeditiously as is possible, but not later than one month thereafter. I make it clear that while the afore exercise is completed, the competent Authority of the Government will advert specifically to the petitioner's contention that there were no Rules in the year 1962 which permitted a teacher to apply for long leave or to take up employment abroad. **Sd/DEVAN RAMACHANDRAN JUDGE** akv ## **WP(C).No.13688 OF 2014(I)** **-8-** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE REPRESENTATION BEFORE THE THEN MINISTER OF EDUCATION THROUGH THE 3RD RESPONDENT DT. 5-5-1993.** **EXHIBIT P2** **TRUE COPY OF THE LETTER DATED 16-121997 ISSUED BY 1ST RESPONDENT.** **EXHIBIT P3** **TRUE COPY OF THE REPRESENTATION DATED 27-10-11 SUBMITTED BEFORE THE GOVT.** **EXHIBIT P4** **TRUE COPY OF REPORT -2 DATED 3-10-12.** **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 30-1-14 BEFORE THE EDUCATION MINISTER.** **EXHIBIT P6 TRUE COPY OF THE ORDER BY THE 1ST RESPONDENT.** ## **RESPONDENT'S/S EXHIBITS : NIL.** //TRUE COPY// P.A. TO JUDGE