P. Raghava Poduval v Union of India and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **& THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 9TH DAY OF MARCH 2018 / 18TH PHALGUNA, 1939** **OP (CAT).No. 46 of 2018** **AGAINST THE ORDER/JUDGMENT IN OA 522/2014 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 06-04-2015 AGAINST THE ORDER/JUDGMENT IN RA 19/2016 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 24-03-2016** ## **PETITIONER(S)/APPLICANT:** **P.RAGHAVA PODUVAL, S/O.V.AMBU PODUVAL, AGED 70 YEARS, CHIEF ACCOUNTS OFFICER (RETIRED), BSNL, PACKATH HOUSE, “PRASADAM”, KANATHIL ROAD, POST BALLA-671 531, KANHANGAD, KASARAGOD DISTRICT. (IN PERSON)** **BY SRI.P.RAGHAVA PODUVAL (PARTY IN PERSON)** ## **RESPONDENT(S):** ## **1. UNION OF INDIA,** - **REPRESENTED BY ITS SECRETARY, DEPARTMENT OF TELECOM, CENTRAL SECRETARIATE, NEW DELHI-110 001.** **2. CHAIRMAN AND MANAGING DIRECTOR, BHARAT SANCHAR NIGAM LTD., BARAKUMPA ROAD, NEW DELHI-110 001.** **3. THE CHIEF GENERAL MANAGER, KEARLA TELECOM CIRCLE, BSNL, THIRUVANANTHAPURAM-695 033.** **4. GENERAL MANAGER, BSNL, TELECOM DISTRICT, KANNUR, KANNUR-670 007.** **5. CONTROLLER OF COMMUNICATION ACCOUNTS, KERALA CIRCLE, DEPARTMENT OF TELECOMMUNICATIONS, THIRUVANANTHAPURAM-695 039.** **R BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R BY SRI.MATHEWS K.PHILIP,SC, BSNL** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 09-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DG** **OP (CAT).No. 46 of 2018** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXT.P1:**|**COPY OF THE O.A.NO.522/14 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL.**| |---|---| |**EXT.P2:**|**COPY OF REPLY STATEMENT FILED BY 1ST AND 5TH RESPONDENTS BEFORE**| ||**THE TRIBUNAL.**| |**EXT.P3:**|**COPY OF REPLY STATEMENT FILED BY RESPONDENTS 2 TO 4 BEFORE THE**| ||**TRIBUNAL.**| |**EXT.P4:**|**COPY OF REJOINDER FILED BY THE APPLICANT IN O.A.522/14.**| |**EXT.P5:**|**COPY OF ADDITIONAL REPLY STATEMENT FILED ON BEHALF OF THE**| ||**RESPONDENTS 1& 5 ON 08.01.2015.**| |**EXT.P6:**|**COPY OF ADDITIONAL REPLY STATEMENT FILED ON BEHALF OF RESPONDENTS**| ||**2 TO 4.**| |**EXT.P7:**|**COPY OF ADDITIONAL REJOINDER SUBMITTED BY THE APPLICANT ON**| ||**31.05.2015.**| |**EXT.P8:**|**COPY OF THE SECOND ADDITIONAL REPLY STATEMENT SUBMITTED ON BEHALF**| ||**OF THE 1ST AND 5TH RESPONDENTS.**| |**EXT.P9:**|**COPY OF THE ORDER ISSUED ON 29.09.2015 DIRECTING THE APPLICANT TO**| ||**APPEAR BEFORE THE RESPONDENT NO.3.**| |**EXT.P10:**|**COPY OF THE JUDGMENT IN O.A.522/14 DATED 6.11.2015.**| |**EXT.P11:**|**COPY OF APPLICATION FOR REVIEW OF THE JUDGMENT R.A.180/00019 OF**| ||**2015.**| |**EXT.P12:**|**COPY OF THE ORDER IN R.A.180/0019 OF 2016 DATED 24.03.2016.**| **RESPONDENT'S EXHIBITS: NIL** **True copy** **P.A to Judge** ## **P.R. RAMACHANDRA MENON & DEVAN RAMACHANDRAN, JJ.** ----------------------------------------------------------- ## O.P.(CAT).No.46 of 2018 ---------------------------------------------------------Dated this the 9[th] day of March, 2018 J U D G M E N T ## **P.R.Ramachandra Menon, J.** The applicant in O.A.No.180/522 of 2014 is the petitioner in this original petition. The proceedings have been filed by the party in person. Challenge is against Ext.P10 order passed by the Tribunal declining interference and dismissing the O.A.No.180/522 of 2014 on 06.11.2015 and Ext.P12 order passed on 24.03.2016, whereby Ext.P11 review application was also dismissed as not liable to be acted upon. 2. Heard the party in person at length. The factual matrix reveals that the petitioner was working as the Chief General Manager in the service of the BSNL and he retired from the service on 30.06.2007. The petitioner moved the Tribunal stating that the actual extent of pensionary _O.P.CAT.No.46/18_ **2** benefits were not released to him, thus seeking for interference of the Tribunal in the Original Application bearing No.105/11. The said O.A was disposed of as per order dated 21.02.2012 in the following terms: “The Annexure A-12 order dated 04.02.2010 is set aside to the extent it denies adhoc promotion to the applicant to the grade of STS with effect from 11.04.2000 at par with his juniors and time bound upgradation from 01.10.2004. The respondents are directed to grant ad hoc promotion to the applicant to the grade of Senior Time Scale with effect from 11.04.2000 and time bound upgradation of pay with effect from 01.10.2004 on notional basis without arrears of pay. His pensionary benefits should be re-fixed accordingly and arrears of pension and pensionary benefits should be paid to him. Appropriate orders in this regard should be issued and the payments be made within a period of 2 months from the date of receipt of a copy of this order.” 3. Alleging contumacious act on the part of the respondent in giving effect to the said order, the petitioner _O.P.CAT.No.46/18_ **3** approached the Tribunal by filing C.P.C.No.79 of 2013, which was ultimately closed as per Annexure A15 order dated 17.12.2013, leaving it open for the petitioner to challenge the orders passed by the BSNL, if aggrieved in any manner. The petitioner, making use of the said liberty, approached the Tribunal again by filing O.A.No.522 of 2014 with the following prayers: “i) To call for the files leading to Annexure A2, A3, A4, A5, A7, A8, A10, A11, A13 and A14 and quash the same. ii) To declare that the denial of pension and pensionary benefits with effect from 01.07.2007 is against the coded provisions of the CCS (pension) rules and denial of pensionary benefits on for 50% merger of the DA and denial of refixation of pension based on pay fixation as per pay commission reports and denial pensionary benefits as per the direction of the Hon'ble Tribunal in O.A.No.105/11 is highly illegal, arbitrary, unjust and irrational and that the same violates article 14, 16 and 300A of the constitution of India. _O.P.CAT.No.46/18_ **4** iii) To declare that the applicant is entitled to and extended all the service and Retirement benefits such as super-annuation pension, Dearth cum Retirement Gratuity, commuted value of pension, leave encashment on retirement, Medical Allowances for the retired and travelling allowance for the retired etc, Revision of Retirement benefits due for 50% merger of DA, to the basic pay, benefits of pensionary revision due to pay commission orders, benefits due to implementation of Hon.Tribunal orders in O.A.105/11 (CPC 79/13) etc and direct the respondents to issue appropriate orders in this regard and effect payment of arrears of entitlement due to him within a time frame as deemed fit and proper to this Hon'ble Tribunal. iv) To direct the respondents to pay all the short paid Retirement benefits as claimed in Paras 4 and 5 with interest and penal interest for the delay such as; a) pensionary/Retirement benefits such as superannuation pension, DCRG, commuted value of pension, leave encashment on _O.P.CAT.No.46/18_ **5** retirement, Medical allowances on retirement and Travelling allowance on retirement admissible to the applicant for the pay or Rs.20,000/- which he was drawing on 30.06.2007 less the amount already paid plus the interest and penal interest for the short payment and delay in payment. b) Additional pensionary/Retirement benefits for 50% merger of dearness relief ordered by the Government, (total pay of Rs.30,000/-) such as superannuation pension, DCRG, commuted value of pension, Leave engacashment on retirement, Medical allowance on retirement and traveling allowance on retirement less the amount already paid plus the interest and penal interest for the short payment and delay in payment. c) Additional pensionary/Retirement benefits for the revised pay fixed at Rs.43,890/based on the pay commission reports such as super annuation pension, DCRG, leave encashment on retirement, medical allowance on retirement and travelling allowances on _O.P.CAT.No.46/18_ **6** retirement less the amount already paid plus the interest and penal interest for the short payment and delay in payment. d) Additional pensionary/Retirement benefits for the revision of pay fixed as ordered by the Hon'ble Tribunal in O.A 105/11 at Rs.20400/ 44770 such as superannuation pension, DCRG, commutation pension for Rs.20400/- leave encashment of retirement medical allowance for the retired and traveling allowance on retirement less the amount already paid plus the interest and penal interest for the short payment and delay in payment. e) To direct the respondents to pay full pension from 01.07.2007 to 21.07.2007 since commutation payment was made on 22.07.2007 with interest and penal interest till it is paid. v) To grant such other relief which may be prayed for at the time of hearing which this Hon Tribunal may deem fit and proper to grant on the facts and circumstances of the case. vi) To award costs and compensation that _O.P.CAT.No.46/18_ **7** may be decided considering the circumstances of the case.” 4. The respondents 1 and 5 filed Ext.P2 reply statement; whereas the respondents 2 to 4 filed Ext.P3 reply statement. Ext.P4 is the rejoinder filed by the petitioner; pursuant to which an additional reply statement was filed by the respondents 1 and 5. Ext.P6 is the additional reply statement filed on behalf of the BSNL. Ext.P7 is the additional rejoinder; in turn necessitating a 2[nd] additional reply statement by the respondents 1 and 5 as borne by Ext.P8. After considering the contentions raised on both the sides, the Tribunal observed with regard to the alleged shortfall in computing the benefits, that various facts and particulars had to be verified. It was accordingly, that Ext.P9 interim order was passed on 29.09.2015 enabling the parties to verify documents and to have the issues settled once and for all. Going by the contents of Ext.P9, it is seen that it was an “agreed order”. For the purpose of clarity we find it appropriate to extract the said _O.P.CAT.No.46/18_ **8** order, as given below: “As the claims made by the applicant in this OA involves as good amount of accounting work, this Tribunal is of the view that it would be just and proper to direct the parties to sit together and sort out the claims of short payments made by the applicant, as stated in the aforesaid additional rejoinder consolidating his claims. For this purpose with the consent of both sides, this Tribunal directs that General Manager (Finance) (IFA) of BSNL and the Deputy Controller of Communication Accounts, Kerala Circle, Department of Telecommunication shall assist the Tribunal by working out the actual short payments due to the applicant. For this purpose the respondents Nos.3 and 5 are directed to make available the services of aforementioned officials along with records on 28.10.2015 at 10 AM in the office of the respondent No.3. Applicant shall also be present and discuss all his claims of short payments with the aforesaid two officials. Both sides are directed to attempt for arriving at a consensus. _O.P.CAT.No.46/18_ **9** It is made clear that the discussions in the above meeting shall be confined only to the claims arising out of and consequent to Annexure A9 order of this Tribunal. The minutes of the meeting shall be recorded by one o fthe aforesaid officers and the applicant shall be obtained therein. The respondent No.3 is directed to forward the aforesaid minutes to this Tribunal in a sealed cover. Further, the applicant is directed to cooperate and to be present in the meeting as aforesaid. Call on 06.11.2015. Issue copies of this order to the learned counsel appearing for respondent Nos.1 & 5 and 2-4 for the purpose of informing the respondents concerned. Issue a copy to the applicant also.” 5. The fact remains that the petitioner did not choose to turn up before the authority, as specifically directed by the Tribunal pursuant to Ext.P9. It was in the said circumstance, that interference was declined and the Original Application was dismissed as per Ext.P10 order _O.P.CAT.No.46/18_ **10** dated 06.11.2015. The said verdict was sought to be reviewed by the petitioner by filing Ext.P11 review application, stating that there was absolutely no basis for passing Ext.P9 order in so far as it was never the case of the petitioner, as discussed therein. The Tribunal observed that no such case was put up before the Tribunal by filing any review petition against Ext.P9 and that the course and conduct of the petitioner was not liable to be accepted. It was accordingly, that the review application was dismissed as Ext.P12, which made the petitioner to challenge Ext.P10 and P11 by filing the present original petition. After hearing the petitioner and also going by the record, there cannot be any dispute of the fact that Ext.P9 was an “agreed order”, based on the consent expressed by both the sides as evident from the portions extracted above. The petitioner submits that he had made some objections in the open court, which however is not reflected from the proceedings. It is also seen that no proceeding was filed by _O.P.CAT.No.46/18_ **11** the petitioner to the effect that the observation made by the Tribunal in Ext.P9 (that it was a consent order) is not correct and that no consent was given by him. Going by the sequence of events and the reasons stated by the Tribunal, we do not find it as a fit case to interfere with the orders passed by the Tribunal. 6. With regard to the delay, it is submitted by the petitioner that the petitioner is having some ailments with regard to eye sight and was advised not to undertake any journey. We are not impressed with the said submission, so far as no such pleading has ever been raised and no material has been produced before this Court. That apart, as mentioned already, Ext.P10 order was passed by the Tribunal on 06.11.2015 dismissing the O.A. This was sought to be reviewed by the petitioner by filing Ext.P11, which came to be dismissed as per Ext.P12 order dated 24.10.2016. The present original petition has been filed, nearly three years after dismissing the original _O.P.CAT.No.46/18_ **12** application as per Ext.P10 and more than 1 ½ years after passing Ext.P12 order. Absolutely no reason or explanation has been given by the petitioner anywhere in the original petition as to the inordinate delay involved. It is settled law that the jurisdiction of this Court is not to extend any relief to such persons who were not at all anxious enough to pursue the matter with regard to the rights and liberties, if at all any, but for sleeping over the issue. We find support from the ruling reported in **Rabindranath v. Union of India [AIR 1970 SC 470].** Hence, interference is declined and original petition stands dismissed. Sd/- ## **(P.R. RAMACHANDRA MENON, JUDGE)** ## Sd/- **(DEVAN RAMACHANDRAN, JUDGE)** True copy P.A to Judge DG