K. Balakrishna Pillai v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** ## **WEDNESDAY, THE 19TH DAY OF AUGUST 2020 / 28TH SRAVANA, 1942** ## **WP(C).No.14015 OF 2020(B)** ## **PETITIONER:** **K. BALAKRISHNA PILLAI, AGED 64 YEARS S/O KUNJANPILLAI,KUZHINJAYYATHU PUTHENVEEDU,PUTHANAMBALAM.P.O, IVERKALA WEST NORTH,KUNNATHUR, KOLLAM.** **BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT EDUCATION DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM-695001.** - **3 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM-695001.** - **4 THE REGISTRAR, KERALA UNIVERSITY,THIRUVANANTHAPURAM-695001.** - **5 THE PRINCIPAL, N.S.S.COLLEGE,PANDALAM, PATHANAMTHITTA-689501.** - **R1 BY GOVERNMENT PLEADER R4 BY SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA** ## **OTHER PRESENT:** ## **GP--NISHA BOSE (SR) .** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-082020, THE COURT ON 19-08-2020 DELIVERED THE FOLLOWING:** WP(C).No.14015 OF 2020(B) 2 ## **JUDGMENT** Dated this the 19th day of August 2020 The petitioner while working as Lab Assistant in the 5[th] respondent College had faced disciplinary proceedings for alleged unauthorized absence. He was removed from service by the Disciplinary Authority. The order was confirmed by the Kerala University Appellate Tribunal, by Ext.P2 order. 2. The petitioner challenged Ext.P2 order before this Court in CRP(UTY) No.37/2015. This Court after considering the matter in detail, by order dated 4.4.2019 held as follows:- “7. xxx xxx xxx xxx xxx xxx xxx xxx **In the circumstances, while maintaining the other findings in the impugned order, the punishment of termination of service is modified as compulsory retirement, thereby entitling the revision petitioner retirement benefits for the period he had actually worked i.e from 11.10.1982** WP(C).No.14015 OF 2020(B) 3 ## **to 5.8.2005.** **The revision petition is partly allowed by modifying the punishment of dismissal from service to compulsory retirement w.e.f 5.8.2005. The eligible retirement benefits due to the revision petitioner shall be disbursed to him expeditiously and at any rate within a period of three months from the date of receipt of a copy of this order.”** 3. The petitioner produced Ext.P3 order along with the No-Liability Certificate before the Competent Authority of the respondents 1 to 3. 4. The grievance of the petitioner is that, the 1[st] respondent has issued Ext.P5 order, relying on a circular passed by the Government, wherein it is held that when a decision in a disciplinary proceeding is modified by an order in an appeal, reducing the punishment after the date of retirement/dismissal/removal of the employee, pensionary/benefits/enhanced pensionary benefits if any admissible, shall be given only from the date of order in the appeal. WP(C).No.14015 OF 2020(B) 4 5. Accordingly, the 1[st] respondent has held that the petitioner is only entitled to arrears of pension with effect from 14.06.2019, that is the date on which the Management of the petitioner had modified the punishment based on Ext.P3 order. It is being aggrieved by Ext.P5 passed by the 1[st] respondent that the petitioner has approached this court. 6. The learned Senior Government Pleader has filed a statement on behalf of respondents 1 to 3. It is, inter alia, contended that the 5[th] respondent had submitted the proposal to the office of the 3[rd] respondent on 26.07.2019. After verifying the proposal, the same was forwarded to the Accountant General, Kerala. The Accountant General sanctioned the petitioner's pension and pensionary benefits by order dated 12.12.2019. The Accountant General has also stated that the Government sanction for authorizing arrears of pension w.e.f. 06.08.2005 has been declined. According to the respondents 1 to 3, as per Ext.P5, WP(C).No.14015 OF 2020(B) 5 the Secretary of the Higher Education Department has informed that the petitioner is eligible to get arrears of pension only w.e.f. 14.06.2019 i.e., the date of order of the NSS Central Committee, (Management) modified the petitioner's punishment of removal from service to compulsory retirement. The Higher Education Department has taken the decision in view of Annexure-A circular. The petitioner has already been paid his pension and DCRG. This Court had only directed the respondents 1 to 3 to pay the petitioner eligible retirement benefits as per the existing rules. Therefore, the petitioner is only entitled to pensionary benefits w.e.f. 14.06.2019 in line with Annexure A. Hence, the writ petition may be dismissed. 7. The petitioner has filed a reply affidavit refuting the contentions in the statement. According to the petitioner, the stand of the respondents is per se arbitrary, illegal and contemptuous. Ext.P5 is an disguised attempt to WP(C).No.14015 OF 2020(B) 6 obliterate the findings of this Court in Ext.P3 order. The petitioner has relied on the decision of the Hon'ble Supreme Court in **Commissioner of Central Excise, Bolpur v. Ratan Melting & Wire Industries [(2008) 13 SCC 1],** to fortify the contentions that a circular cannot override an order/judgment. The petitioner has prayed that his arrears of pension may be directed to be paid as fixed by this Court in Ext.P3 order. 8. Heard Sri.Vinoy Varghese, the learned Counsel appearing for the petitioner and Smt.Nisha Bose, the learned senior Government Pleader appearing for the respondents 1 to 3. In view of the relief that I propose to pass, I have dispensed with notice to respondents 4 and 5, as the judgment is not adverse to them. 9. The learned Counsel for the petitioner argued that the action of the respondents 1 to 3 in passing Ext.P5 is in willful contempt of Ext.P3 order. He relied on the decision of the Hon'ble WP(C).No.14015 OF 2020(B) 7 Supreme Court in **Commissioner of Central Excise, Bolpur** (cited supra) and argued that Annexure A circular has fallen into a pale of insignificance in view of Ext.P3 order of this Court. When, this Court has categorically held that the petitioner is eligible for retiremental benefits w.e.f. 05.08.2005, the respondents have no authority or jurisdiction to substitute the finding of this Court in Ext.P3 order. 10. On the contrary, the learned senior Government Pleader, argued that the respondents have passed Ext.P5 order in consonance with the directions of this Court in Ext.P3 order. This Court has only held that the petitioner is entitled to eligible retiremental benefits. She also relied on Rules 119 and 120 of Chapter IX of Part III of KSR, to fortify her contentions. According to her, there is no illegality in Ext.P5 order. Hence, the writ petition may be dismissed. 11. The sole question that emerges for consideration is whether the petitioner is entitled WP(C).No.14015 OF 2020(B) 8 for retirement benefits i.e., arrears of pension w.e.f. 05.08.2005 or w.e.f. 14.06.2019. 12. The Division Bench of this Court, by Ext.P3 order has declared that the petitioner is eligible for retirement benefits for the period he actually worked, i.e., from 11.10.1982 to 05.08.2005. This Court allowed the Revision Petition by modifying the punishment of dismissal of service to compulsory retirement w.e.f. 05.08.2005. Ext.P3 order has attained finality. 13. The present stand of the respondents 1 to 3 is that as per Annexure-A circular, promulgated by the Finance (Pension-B) Department of the Government of Kerala, it is ordered that a pensioner would be entitled to pensionary benefits only from the date of order in the appeal reducing the earlier punishment. Thus, the respondents 1 to 3 have taken the decision to disburse the arrears of pension to the petitioner only w.e.f 14.06.2019 i.e., the date on which the Management modified the punishment of the petitioner, pursuant to Ext.P3 WP(C).No.14015 OF 2020(B) 9 order. 14. The findings of this Court in Ext.P3 order is unambiguous. This Court has categorically found, as extracted above, that the petitioner has compulsory retired w.e.f 05.08.2005. The AnnexureA circular has no relevance in the present case because the circular becomes applicable only when the appellate authority modifies the decision of the disciplinary authority. Whereas, in the case of the petitioner, it is the Division Bench of this Court, in exercise of its revisional jurisdiction, that has found that the petitioner is entitled to retirement benefit for the period from 11.10.1982 to 05.08.2005. Therefore, the respondents 1 to 3 have no authority to tinker with the findings or sit in judgment over the order of this Court, especially when Ext.P3 order has become conclusive. Rules 119 and 120 of Chapter IX of Part III of KSR has no relevance or application to the facts of this case, in view of the above finding. 15. It is trite law, has held by the Hon'ble WP(C).No.14015 OF 2020(B) 10 Supreme Court, in **Commissioner of Central Excise, Bolpur** (cited supra) that circulars and instructions issued by an authority may be binding on the authorities but not on the law declared by the Hon'ble Supreme Court or the High Courts. 16. In view of the above findings, I am of the definite opinion that the petitioner is entitled for arrears of pension w.e.f. 06.08.2005 as fixed in Ext.P3 order. In the result, I allow this writ petition by quashing Ext.P5 order issued by the 1[st] respondent and directing the respondents 1 to 3 to pay the petitioner arrears of pension w.e.f 06.08.2005, as expeditiously as possible and at any rate within a period of two months from the date of receipt of the copy of this judgment, failing which the above amount shall carry interest at the rate of 6% from 6.8.2005 till the date of payment. ## **Sd/-** **C.S.DIAS JUDGE** ska WP(C).No.14015 OF 2020(B) 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WP(C)NO.6725/2011 DATED 25/03/2011. EXHIBIT P2 TRUE COPY OF THE ORDER OF KERALA UNIVERSITY APPELLATE TRIBUNAL IN UNIVERSITY APPEAL NO.2/2011 DATED 18/10/2014. EXHIBIT P3 TRUE COPY OF JUDGMENT IN CRP(UTY),N0.37/2015 DATED 4/4/2019** **EXHIBIT P4 TRUE COPY OF THE NON-LIABILITY CERTIFICATED DATED 20/1/2020 ISSUED BY THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION.** **EXHIBIT P5 TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT DATED 19/3/2020.** **EXHIBIT P6 TRUE COPY OF THE DECISION DOWNLOADED FROM CASE SEARCH, THE DICTUM LAID ON THE ABOVE CASE ALONG WITH THE JUDGMENT IN THE CASE** ## **RESPONDENTS'S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE CIRCULAR NO.54/2013/FIN DATED 19.06.2013**