Daniel Oommen v. National Institute of Technology Calicut and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 14TH DAY OF OCTOBER 2019 / 22ND ASWINA, 1941** # **WP(C).No.6189 OF 2016(W)** ## **PETITIONER:** **DANIEL OOMMEN AGED 72 YEARS** **S/O. P.I.OOMMEN, RESIDING AT PLAVILLA VEEDU, HOSPITAL JUNCTION, KUNDARA - 691 501, KOLLAM.** **BY ADVS. SRI.J.R.PREM NAVAZ SRI.P.T.SHEEJISH** ## **RESPONDENTS:** - **1 NATIONAL INSTITUTE OF TECHNOLOGY (CALICUT, NITC) CAMPUS P.O., CHAHAMANGALAM, KOZHIKODE, KERALA - 673 601, REPRESENTED BY ITS REGISTRAR.** - **2 UNION OF INDIA MINISTRY OF FINANCE, DEPARTMENT OF ECONOMIC AFFAIRS, NORTH BLOCK, NEW DELHI - 110 001, REPRESENTED BY ITS SECRETARY.** - **3 MINISTRY OF HUMAN RESOURCES DEVELOPMENT SASTRI BHAVAN, NEW DELHI - 110 001, REPRESENTED BY ITS DIRECTOR.** - **4 REGIONAL ENGINEERING COLLEGE (NIT) CAMPUS P.O CHAHAMANGALAM, KOZHIKODE, KERALA - 673 601, REPRESENTED BY ITS PRINCIPAL.** - **R2& R3 BY ADV. SRI.P.S.GOPINATH CGC R1 BY ADV. SRI.SHYAM PADMAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.6189 OF 2016(W) 2 ## **JUDGMENT** This writ petition is filed by the petitioner seeking direction to respondents 1 to 4 to forthwith pay all terminal/pensionary benefits due to the petitioner with interest for the amounts due to him from the date on which it fell due upto the date of disbursement reckoning his total qualifying service of 18 years and for other related and consequential reliefs. Basic material facts for the disposal of the writ petition are as follows; 2. Petitioner was working as a Lecturer in the Electrical Department of the Regional Engineering College, Calicut, presently National Institute of Technology, from 25.1.1967 to 1.10.1981 with a total continuous experience of 13 years. In the year 1967, he was appointed as Associate Lecturer in the said institution. In the year 1969, petitioner was promoted as a Lecturer. Petitioner was granted leave for a period of 5 years from 1.10.1981, evident from Ext.P4 to take up a foreign assignment retaining his lien in WP(C).No.6189 OF 2016(W) 3 the 1[st] respondent college. In the year 1984, petitioner got an opportunity to work in the Ministry of Electricity and Water, Kuwait as a Design Engineer. A request for extension of leave to continue his job abroad was communicated to the Education Minister, who according to the petitioner, was the Chairman of Board Governors of Regional Engineering College, Calicut. However, petitioner did not get extension for another five years and so petitioner couldn't re-join the college. After repeated correspondence between the petitioner and the respondent college, petitioner was terminated w.e.f.1.10.1986 without any pensionary benefits. According to the petitioner, due to a war broke out during the year 1990 at Kuwait, petitioner had come back to India during 1990 and thereafter petitioner is finding it difficulty to survive. 3. Anyhow case of the petitioner is that, Exts.P6 & P7 representations were submitted before the then Education Minister and before the Government of India, however, no action was taken. Therefore, according to the petitioner, petitioner is entitled to get the pensionary benefits for the services put in by the WP(C).No.6189 OF 2016(W) 4 petitioner in the 1[st] respondent college. 4. A detailed counter affidavit is filed by the 1[st] respondent refuting the claims and allegations raised by the petitioner. Among other contentions, it is stated that, the writ petition is barred by limitation since petitioner was terminated from service on and w.e.f. 1.10.1986. However, this writ petition is filed before this court only on 16.2.2016 i.e., after a period of nearly 30 years. So also it is submitted that, petitioner has not cared to challenge the order of dismissal. That apart it is submitted that, initially the period of leave sanctioned was for a period of 5 years i.e., from 1.10.1981 to 30.9.2016. However, petitioner has not made any application for extension of leave before the expiry of leave granted. Ext.P5 letter was sent only on 22.12.1986 i.e., almost 3 months after the leave has expired and therefore, it is clear that, petitioner did not utilise his opportunity to apply for extension of leave before expiry of the already granted leave. It is also submitted that, petitioner was in service at the Regional Engineering College and he was not under the WP(C).No.6189 OF 2016(W) 5 services of the Kerala State or Government of India enabling the State to ventilate the grievances of the petitioner. On the other hand petitioner was a subscriber to the Contributory Provident Fund, which was a scheme optional to the staff of Regional Engineering College in lieu of pension scheme during the period and the deposit was already disbursed to him in July, 1989 itself. That apart it is pointed out there is no rule to grant pension to a dismissed employee from service and the institute is helpless on the petitioner's request. 5. A reply affidavit is filed by the petitioner reiterating the stand adopted in the writ petition and also submitting that consequent to introduction of NIT Act, 2007, as per statute 29, the employees of NIT ought to have rendered continuous service for not less than 10 years shall be granted with retirement pension benefits without fail. Therefore, petitioner is entitled to get the benefits of the provisions of NIT Act. 6. I have heard learned counsel for petitioner, learned Standing Counsel appearing for National WP(C).No.6189 OF 2016(W) 6 Institute of Technology and perused the pleadings and documents on record. 7. The sole question to be considered is, whether petitioner is entitled to get any relief as is sought for in the writ petition ? It is an admitted fact that, this writ petition was filed 30 years after petitioner was dismissed from service. It is also an admitted fact that, even though petitioner was sanctioned with leave for a period of 5 years on and w.e.f.1.10.1981, petitioner has not applied for extension of leave before expiry of the same. It is the clear case of petitioner as well as respondents that Ext.P5 application seeking extension of leave was submitted before the Education Minister of the State who had nothing to do with the then Regional Engineering College, Calicut, dated 22.12.1986 i.e., three months after the expiry of the leave granted. Petitioner has thereafter submitted Ext.P6 representation dated 1.10.1990 before the then Education Minister of Kerala and Ext.P7 request for service pension before the Regional Engineering College on 11.1.2016. In spite of all these and WP(C).No.6189 OF 2016(W) 7 inaction on the part of the said respondents, petitioner has not moved any statutory authority or this court or any other court of law for securing any reliefs. Therefore, I find force in the contention advanced by the learned counsel appearing for 1[st] respondent that due to the unpardonable delay of 30 years, petitioner is not entitled to get any relief. Moreover, petitioner was dismissed from service in the year 1986, which was well aware to the petitioner and petitioner has not challenged the said dismissal order before any authority nor before this court. Therefore, in my considered opinion, petitioner has not made out any case for securing the relief as is sought for in the writ petition. Learned counsel for 1[st] respondent, in the matter of delay, has invited my attention to judgment of a Division Bench of this Court in **State of Kerala v. Varghese** [(2000)IILLJ 1261 Ker:2000(1)KLT 762] and paragraph 6 is relevant to the context, which read thus: “6. R. 9 in Appendix XII-A of KSR prescribes certain methodology to be adopted for terminating service of an employee who remains unauthorisedly absent without getting leave sanctioned. Rules in Appendix XII-A WP(C).No.6189 OF 2016(W) 8 apply to private college employees also. Therefore, R. 9 was clearly applicable to the facts of the case. Admittedly, procedure has not been followed. The rule reads as follows: “9. Those officers who absent themselves unauthorisedly without getting the leave sanctioned under these rules shall be proceeded against and his service terminated after following the procedure laid down in the Kerala Civil Services (Classification, Control and Appeal) Rules 1960. Requests for reentertainment in Government service in such cases as well as in cases covered by R. 6 above will be summarily rejected.” Bare reading of the provision makes it clear that an officer who absents unauthorisedly without getting leave sanctioned can be proceeded against and his service can be terminated. But, there is a requirement to follow prescribed procedure in terms of CCA Rules. Though it is conceded by learned counsel for the employee that unauthorised absence in the circumstances exposed him to termination, yet it is submitted that same could have been done after following specified procedure. But the question is whether order of termination which continued unchallenged for nearly 15 years, can be nullified after long period of unexplained action. We find from records that appellants have taken a definite stand about delayed approach to Court. But, same has not been dealt with in the judgment, though admittedly said point was urged by the State before learned Single Judge. Contextual facts depict that there was no challenge to the order for nearly 15 years. It is now well settled principle of law that WP(C).No.6189 OF 2016(W) 9 while no period of limitation is fixed, but in the normal course of events, the period a party is required to file a civil proceeding ought to the guiding factor. While it is true that the extraordinary jurisdiction under Art. 226 of the Constitution of India is available to mitigate the sufferings of the people in general, but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law Courts on a very sound equitable principle. Hence, equitable doctrine, namely, delay defeats equity has its fullest application in the matter of grant of relief under Art. 226 of the Constitution. Discretionary relief can be had provided one has not, by his act or omission, given a go-bye to his rights. Equity favours a vigilant rather than an indolent litigant. This position has been highlighted by Apex Court in _M.C. Ahmednagar v. Shah Hyder Beiq_ (2000 (1) SCALE 124). Above being the basic tenet of law, employee was required to show reason for his delayed approach. Except taking oft-repeated plea of having made representation, nothing further was placed on record. Making representations does not stall running of time and is not a sound ground to explain delay. Learned Single Judge was, therefore, clearly in error in granting relief to the employee. We allow State’s appeal by reversing judgment of learned Single Judge.” Taking into account all these legal and factual circumstances, I am of the considered opinion that, WP(C).No.6189 OF 2016(W) 10 petitioner is not entitled to get any reliefs. Resultantly writ petition fails, accordingly it is dismissed. **Sd/-** Smv 15.10.2019 **SHAJI P.CHALY JUDGE** WP(C).No.6189 OF 2016(W) 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**P1 - COPY OF THE MEMORANDUM OF APPOINTMENT**| |---|---| ||**AS ASSISTANT LECTURER DT. 25.1.1967.**| |**EXHIBIT P2**|**P2 - COPY OF PROMOTION PROCEEDINGS AS**| ||**LECTURER DT. 19.09.1969.**| |**EXHIBIT P3**|**P3 - EXPERIENCE CERTIFICATE FROM THE 1ST**| ||**RESPONDENT i.e., CALICUT REGIONAL**| ||**ENGINEERING COLLEGE DT. 02.09.1981.**| |**EXHIBIT P4**|**P4 - COPY OF LETTER GRANTING PERMISSION TO**| ||**TAKE UP FOREIGN ASSIGNMENT FROM 30.09.1981.**| |**EXHIBIT P5**|**P5 - COPY OF REQUEST FOR EXTENSION OF LEAVE**| ||**TO CONTINUE JOB ABROAD TO THE CHAIRMAN OF**| ||**BOARD GOVERNORS, REC, CALICUT DT.**| ||**22.12.1986.**| |**EXHIBIT P6**|**P6 - COPY OF COMMUNICATION CHAIRMAN, BOARD**| ||**OF GOVERNORS, REC, DT. 01.10.1990 TO**| ||**REINSTATE.**| |**EXHIBIT P7**|**P7 - COPY OF COMMUNICATION DT. 11.1.2016.**| |**EXHIBIT P8**|**P8 - COPY OF GENERAL CONDITION OF SERVICE**| ||**ISSUED BY REC.**|