R. Sankara Pillai (dead) and Renjith Sankar P. v. The Chairman, Kerala State Electricity Board, The Chief Engineer, KSEB, and The Executive Engineer, Electrical Division, KSEB, Chengannur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** ## **TUESDAY, THE 7TH DAY OF FEBRUARY 2012/18TH MAGHA 1933** **WP(C).No. 32100 of 2007 (U) ---------------------------** ## **PETITIONER(S):** - **------------------------** **R.SANKARA PILLAI(DIED), PULLAMPLAVIL VEEDU, KURATTISSERRY, MANNAR P.O. ALAPPUZHA.** ## **2ND ADDL.PETITIONER** **RENJITH SANKAR.P., S/O.LATE R.SANKARA PILLAI, AGED 22 YEARS, PULLAMPLAVIL VEEDU,KURATTISSERRY, MANNAR.P.O., ALAPPUZHA-ALLEPPEY.PIN-689 622.** ## **BY ADV. SRI.MILLU DANDAPANI** ## **RESPONDENT(S):** **---------------------------** **1. THE CHAIRMAN,KERALA STATE ELECTRICITY BOARD,** **VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004.** **2. THE CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004.** **3. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KERALA STATE ELECTRICITY BOARD, CHENGANNUR.** **BY ADV.SRI.PULIKOOL ABUBACKER, SC, KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.32100/2007** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE CASE SUMMARY AND DISCHARGE RECORD DATED 5/12/2003 ISSUED BY SREE CHITRA TIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY.** - **P1(A) COPY OF THE CERTIFICATE DATED 01/2/05 ISSUED BY DR.ASHA KISHORE, ADDITIONAL PROFESSOR, DEPARTMENT OF NEUROLOGY, SCTIMST.** - **P2 COPY OF THE APPLICATION DATED 18/02/2005 FOR INVALID PENSION SUBMITTED BY P.SANKARA PILLAI.** - **P3 COPY OF THE LETTER NO.EB2/SE/IP/III/2005 DATED 26/7/05 ISSUED BY 2ND RESPONDENT TO DIRECTOR OF HEALTH SERVICES.** - **P4 COPY OF THE LETTER NO.68665/2005/DHS DATED 23/8/05 ISSUED BY THE DIRECTOR OF HEALTH SERVICES TO PETITIONER.** - **P5 COPY OF THE ORDER NO.EB2/SE/IP/III/2003 DATED 4/3/06 ISSUED BY 2ND RESPONDENT TO P.SANKARA PILLAI.** - **P6 COPY OF THE REPRESENTATION DATED 25/3/06 SUBMITTED BY P.SANKARA PILLAI TO FIRST RESPONDENT.** - **P7 COPY OF THE REPRESENTATION DATED 26/6/06 SUBMITTED BY P.SANKARA PILLAI BEFORE THE FIRST RESPONDENT.** - **P8 COPY OF THE REPRESENTATION DATED 31/7/06 SUBMITTED BY P.SANKARA PILLAI BEFORE THE FIRST RESPONDENT.** - **P9 COPY OF THE REPRESENTATION DATED 8/11/06 SUBMITTED BY P.SANKARA PILLAI BEFORE 3RD RESPONDENT AND COPY ENDORSED TO THE PERSONAL OFFICE, KSEB, TRIVANDRUM** - **P10 COPY OF THE MEMO NO.EB2/06-07/1023(A) DATED 10/3/2006 ISSUED BY 3RD RESPONDENT TO P.SANKARA PILLAI.** - **P11 COPY OF THE ORDER NO.MOS/RIA/147/2006 DATED 25/1/07 ISSUED BY THE DIRECTOR (MIS) & SPIO, OFFICE OF THE 1ST RESPONDENT TO SMT.REMA.** - **P12 COPY OF THE LETTER NO.PA/IX/PPO 35740 DATED 17/2/07 ISSUED BY 2ND RESPONDENT TO THIRD RESPONDENT.** - **P13 COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT, NO.LAS III/9255/2011, DATED 14/12/2011.** **2/-** **sts** **-2-** ## **WP(C)NO.32100/2007** |**P14**|**COPY OF THE NOTIFICATION NO.PSI/3146/85, DATED 29/4/1985 ISSUED BY KSEB**| |---|---| ||**BOARD.**| |**P15**|**COPY OF THE NOTIFICATION NO.PSI/3146/85, DATED 01/7/1992 ISSUED BY KSEB**| ||**BOARD.**| |**P16**|**COPY OF THE MEMORANDUM OF SETTLEMENT.**| ## **RESPONDENT'S EXHIBITS:** **R2(A) COPY OF THE PROCEEDINGS OF THE FULL BOARD MEETING HELD ON 27/9/2002** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.32100 of 2007** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of February, 2012** ## **J U D G M E N T** The 1[st] petitioner was an employee of the Kerala State Electricity Board. He suffered a serious accident of electrocution, in the course of his duties as a Line Assistant of the Board, on 08.06.1991. His whole left thigh and whole of left upper limb including left middle and ring finger got burnt. He was discharged from the hospital on 03.07.1991. After prolonged treatment, he rejoined duty and resumed work. He was later on promoted as Sub Engineer on 08.02.2002. In the meanwhile he developed neurological problems and came to a stage when he was totally unable to perform his duties as an employee of the KSEB, which physical condition of the 1[st] petitioner was because of a neurological disorder known as Progressive Supra Nuclear Palsy, which condition was certified by the Sree Chitra Tirunal Institute for Medical Sciences and Technology, Thiruvananthapuram, a Government of India Institute of W.P.(C)No.32100 of 2007 **-2-** national importance. On the basis of Ext.P1 (a) medical certificate issued by the said Institute, the 1[st] petitioner submitted Ext.P2 application dated 18.2.2005 seeking invalid pension as he could no longer be of any use to the Board as an employee. That application was not processed immediately. By Ext.P3 dated 26.7.2005, the Chief Engineer of the KSEB directed the Director of Health Services to constitute a State Medical Board to examine the 1[st] petitioner to decide as to whether he is eligible to retire on the grounds of becoming an invalid. By Ext.P4 dated 23.8.2005, the Director of Health Services directed the 1[st] petitioner to appear for a medical examination by the Medical Board on 30.8.2005. On that day, the 1[st] petitioner was examined. Pursuant thereto, by Ext.P5 order dated 4.3.2006, the 1[st] petitioner was granted invalid pension with effect from 30.8.2005. Even thereafter, the 1[st] petitioner was not relieved from service. The 1[st] petitioner filed Ext.P6 representation in this regard. Thereafter, the petitioner filed Ext.P7 application dated 26.6.2006 for sanctioning of W.P.(C)No.32100 of 2007 **-3-** his pension and other monetary benefits on account of his retirement. In that application, the 1[st] petitioner also requested that one of the petitioner's children may be given employment on compassionate grounds as per the Rules applicable. The 1[st] petitioner's request in that regard was not considered favourably. The 1[st] petitioner therefore filed Ext.P8 representation before the Minister for Electricity of Government of Kerala. The same also did not evoke any favourable response. The actual order relieving the petitioner from service with effect from 30.8.2005 was passed only by Ext.P10 order dated 10.3.2006. Thereafter the 1[st] petitioner's wife submitted an application under the Right to Information Act, seeking the reasons for not granting compassionate employment to one of the children of the 1[st] petitioner as per the Rules. Pursuant thereto, Ext.P11 information was supplied to the wife of the 1[st] petitioner, wherein two reasons were stated for not considering the 1[st] petitioner's application for compassionate employment to one of his children. First is W.P.(C)No.32100 of 2007 **-4-** that, since the 1[st] petitioner's normal date of retirement is 31.5.2006 and he was granted invalid pension only with effect from 30.8.2005, the 1[st] petitioner did not have the minimum service of one year after the date of granting invalid pension till his normal date of superannuation which is a condition precedent for becoming eligible for compassionate employment under the Rules. The 2[nd] reason is that, such compassionate employment has been restricted to one of the dependants of only those employees who suffered accident in the course of duty and suffered 100% physical disability thereby. It is stated that since the accident of the petitioner was on 8.6.1991 and he continued in service for 15 years and only on 30.8.2005 he was granted invalid pension, the 1[st] petitioner's dependant is not eligible for compassionate employment as per Rules. The 1[st] petitioner's retirement benefits were sanctioned only by Ext.P12 dated 17.02.2007. The 1[st] petitioner filed this writ petition challenging the refusal on the part of the respondents to give compassionate employment to one of W.P.(C)No.32100 of 2007 **-5-** his children and claiming interest for the delayed of retirement benefits. During the pendency of this writ petition, the 1[st] petitioner died on 12.7.2010 and his son came on record as the 2[nd] additional petitioner to prosecute the writ petition. The writ petition came up for hearing before me on 30.9.2011, on which date, after hearing both sides in detail, when I was about to dictate judgment allowing the writ petition, the Standing Counsel for the Board made a fervent plea to grant time to enable the Electricity Board themselves to consider the case of the petitioner in the right perspective. Accordingly, I passed the following order on 30.9.2011: “After hearing both sides, I find considerable merit in the contentions of the petitioner. Even otherwise, I am of opinion that this is an eminently fit case for the Electricity Board to consider the case of the petitioner with sympathy, which ordinarily normal human being should have. That being so, I am inclined to give the respondents another opportunity to consider the claim of the petitioner in the right perspective. The learned standing counsel for the Electricity Board seeks two month's time to take a decision as directed above. The respondents shall take a decision in the matter in the right perspective taking into account the observations made above, within two months from today. Post after two months.” ## Thereafter, the Electricity Board took several adjournments W.P.(C)No.32100 of 2007 **-6-** for passing orders as promised. In fact on one date of posting I was told by counsel that orders would shortly be passed giving benefit of compassionate employment to the petitioner shortly. But strangely, the Chairman of the Electricity Board passed Ext.P13 order dated 14.12.2011 rejecting the claim of the petitioner. Therefore the petitioner got the writ petition amended including a challenge against Ext.P13 also. As per the amended writ petition, the 2[nd] petitioner seeks the following reliefs: “i. Issue a writ of mandamus or any other appropriate writ or order or direction, commanding the second respondent to treat the petitioner(R.Sankara Pillai) to have retired from the service in invalid grounds i.e., from the date of Exhibit P-2 application. ii. Issue a writ of mandamus or any other appropriate writ, order or direction, directing the first respondent to grant compassionate appointment to any suitable post to the son of petitioner, Sri.P.Ranjit Sankar, with immediate effect. iii. Issue a writ of mandamus or any other appropriate writ or order or direction, commanding the second respondent to pay interest on the delayed period of disbursements. iv. Declare that petitioner's son is entitled for compassionate appointment to any suitable post in KSEB, and also entitled to get interest on delayed period of disbursements of terminal benefits. v. Issue such other appropriate writ or order or direction as deemed fit and proper by this Honourable Court on the facts and circumstances of the case. W.P.(C)No.32100 of 2007 **-7-** v (a) Issue a writ of certiorari or any other appropriate writ, order or direction, directing to quash Exhibit P-13 order issued by the 1[st] respondent. (relief v (a) incorporated as per order of this Honourable Court dated 10.1.2012 in I.A.No.437 of 2012) vi. Award the cost of these proceedings to the petitioner.” 2. Earlier the Electricity Board had filed a counter affidavit to the unamended writ petition supporting their action in rejecting the claim for compassionate employment to the son of the 1[st] petitioner. A counter affidavit has been filed to the amended writ petition also. In that counter affidavit, they rely on Ext.R2 (a) proceedings of the Board dated 27.9.2002, wherein the Board had decided that the compassionate employment under the Invalid Pension Scheme be restricted in future only to the dependants of those Board employees who have availed themselves of invalid pension out of 100% permanent disability from accidents that arose out of and in the course of employment by the Board. They therefore now strongly opposes the prayers in the writ petition and supports the impugned orders. W.P.(C)No.32100 of 2007 **-8-** 3. I have considered the rival contentions in detail. 4. Going by Ext.P13, the Chairman of the Board has relied on three reasons for negativing the claim of the petitioners. First is that, since the 1[st] petitioner was permitted to avail of invalid pension only with effect from 30.8.2005, he did not have the minimum service of one year before his normal date of retirement on superannuation ie. 31.5.2006, which is a condition precedent for becoming eligible for compassionate employment as per Rules. The second is that, in the Full Board meeting held on 27.9.2002, it was decided that compassionate employment would be available only to dependants of only those Board employees, who have availed of invalid pension due to 100% permanent disability and incapacitation caused from accident that arose out of and in the course of performance of their official duties under the Board, which the 1[st] petitioner's case was not. The third is that, the accident of the 1[st] petitioner arose in 1991 and the Board in its magnanimity allowed the petitioner to continue in service ## W.P.(C)No.32100 of 2007 **-9-** for 15 more years after the accident with all his disability, he was given promotion to the post of Sub Engineer for which good physical standards are essential and he was given a certificate of appreciation for his meritorious service in the Board. According to the Chairman, these facts would disprove the 1[st] petitioner's claim that he had physical disability to perform his duties in the Board during the period from 1991 to 2005. 5. I shall consider the sustainability of the objections of the Board against the claim of the petitioners for employment to the dependant of the 1[st] petitioner under the compassionate employment scheme in seriatim. The first is that, the 1[st] petitioner did not have minimum one year service between his date of availing of invalid pension and the normal date of retirement on superannuation. That issue is squarely covered by my own decision in W.P. (C) No.12125/2006. In that decision, relying on the provisions of Part III of Kerala Service Rules, the applicability of which is not disputed since the Chairman of the Board himself has W.P.(C)No.32100 of 2007 **-10-** ## relied on the same in Ext.P13 order, I have held as follows: “3. I have considered the rival contentions in detail. It is not disputed before me that the second petitioner filed Ext.P1 application dated 4.1.2001 supported by Ext.P1(A) medical certificate dated 4.1.2001 for retirement on medical grounds. Ext.P1(A) medical certificate issued by the consultant in Psychiatry of Calicut Medical College shows that the second petitioner was completely and permanently incapacitated for further service of any account in the Kerala State Electricity Board. Even prior to 4.1.2001 also the second petitioner was on long leave for quite some time, for various periods as is evident from Ext.P1, the details of which have already been quoted at the beginning of this judgment. It is also not disputed before me that pursuant to Ext.P1 application, the petitioner was relieved from service as evidenced by Ext.P2 charge transfer certificate. Rules 52 to 54 of Part III of KSR provide thus: “ **52. Applicants to be discharged** .- An employee who has submitted under Rule 43 a medical certificate of incapacity for further service,must not (except for special reasons to be reported to the Government) be retained on duty pending a decision on his application for pension, nor can he obtain leave of absence. Without the special orders of Government, duty after the date of such medical certificate does not count for pension. **53** . The object of Rule 52 is to discourage tentative applications; but last grade employee, who in the opinion of the Head of Office, is fit for light work may be retained in employment till his pension is sanctioned, provided that his post is not filled up till he retires, and that his service counts only to the date of his medical certificate. **54** . Rule 52 refers only to the retention in duty of an employee who has furnished a medical certificate in support of an application for invalid pension or gratuity. The retirement of an employee who is absent on leave other than earned leave when such certificate is submitted, may have effect from the termination of his leave, and the employee may continue to draw leave allowance to the end of his leave” W.P.(C)No.32100 of 2007 **-11-** Of course, Rule 43 provides thus: **43.** The incapacity for service must be established by a medical certificate attested as follows:- (a) By a Medical Board, in the case of all Gazetted Government employees whose pay as defined in Rule 12 (23), Part I of these Rules, exceeds Rs.500 per mensem. (b) In other cases, by a Medical Officer not below the rank of a Civil Surgeon. (c) No medical certificate of incapacity for service may be granted unless the applicant produces a letter to show that the Head of his Office or Department is aware of his intention to appear before the Medical Officer. The Medical Officer shall also be supplied by the Head of the Office or Department in which the applicant is employed with a statement of what appears from official records to be the applicant's age. Where the applicant has a Service Book, the age therein recorded should be reported.” It remains a fact that pursuant to Ext.P1 application, the petitioner was relieved from service based on Ext.P1(A) medical certificate, which certified that the second petitioner is completely and permanently incapacitated for further service of any kind, if Ext.P1(A) certificate was not acceptable and was not in terms of Rule 43, the first respondent ought to have directed the second petitioner to produce a proper medical certificate. But instead, the first respondent relieved the second petitioner from duty as is clear from Ext.P2 certificate of transfer of charge. The veracity of Ext.P1(A) medical certificate has also been confirmed by Ext.P3. Therefore, the effect of Ext.P3 relates back to Ext.P1(A) medical certificate. Under Rule 52, an employee who has submitted, under Rule 43, a medical certificate of incapacity for further service cannot be retained on duty, pending a decision on his application of pension nor can he obtain leave of absence. Therefore, after 4.1.2001, when the petitioner was relieved from duty, he could not have been granted any leave. Consequently, the second petitioner's status after 4.1.2001 could only have been that of a person allowed to retire from service under Rule 43. Therefore, although Ext.P4 order was passed only on 7.8.2001, that order must be deemed to have come into force with effect from 4.1.2001. In so far as the second petitioner had been W.P.(C)No.32100 of 2007 **-12-** relieved from service under Rule 52 on 4.1.2001 itself, I do not think that the petitioners can be prejudiced by the delay on the part of the first respondent in passing orders on Ext.P1 application dated 4.1.2001 of the second petitioner, that too after relieving the second petitioner from duty in accordance with Rule 52. In fact Rule 53 specifically stipulates that the purpose of Rule 52 is to discourage tentative applications. The very fact that the second petitioner was on medical leave for long periods on various occasions would categorically prove that the second petitioner's application dated 4.1.2001 was not a tentative application at all. Therefore, there was no occasion for the first respondent to even suspect the genuineness of the second petitioner's application for retirement under Rule 43, nor the medical certificate Ext.P1(A). Therefore, I am satisfied that the second petitioner's retirement should take effect on 4.1.2001 and not from 16.4.2001 as held by the first respondent. Therefore, Exts.P4 and P6 are quashed to that extent. The result is that the second petitioner had more than one year's service on the date of his retirement under Rule 43. If that be so, the eligibility of the first petitioner to get compassionate employment also cannot be disputed. The result of the above discussion is that the first petitioner has become entitled to compassionate employment on account of the retirement of the second petitioner under rule 43. Therefore, there would be a direction to the respondents to give employment to the first petitioner in a suitable vacancy as per the Board order granting such benefits as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment.” 6. It appears that W.A. No.400/2011 has been filed by the Board against that judgment, with I.A. No.241 of 2011 seeking condonation of delay of 115 days in filing the said appeal and on the I.A. notice has been ordered by the Division Bench. Following the above judgment, another learned Judge of this Court has in W.P. (C) No.11089/2005 granted similar benefits to another employee of the Board. ## W.P.(C)No.32100 of 2007 **-13-** To the knowledge of the Standing Counsel, that judgment has not been appealed against yet. Those two judgments are squarely applicable to the facts of this case. The 1[st] petitioner submitted application for invalid pension on 18.2.2005. Between that date and the normal date of his superannuation viz. 31.5.2006, there was more than 1 year's service left for the petitioner, which is the condition for compassionate employment to his dependant. Going by those judgments the date for calculation of the one year period starts from 18.2.2005 when the petitioner submitted the application for invalid pension. The Board is now trying to take advantage of their own lethargy and non-compliance with Rules quoted in my earlier judgment (supra) to deny the legitimate claim of an employee's dependant, which, to say the least, is totally unjust and cruel. It is also seen from the notings in the file of the Board produced before me, that the 1[st] petitioner did not attend duties from 28.2.2005 he having entered on various kinds of leave after that date. In view of the said judgments, the Chairman was completely ## W.P.(C)No.32100 of 2007 **-14-** wrong in relying on that reason for denying the benefit of compassionate employment to the 2[nd] petitioner. In this connection it must be noted that judgment in W.P. (C) No.12125/2006 was rendered on 27.9.2010 and the judgment in W.P. (C) No.11089/2005 was rendered on 09.11.2011 and Ext.P13 order was passed only on 14.12.2011. Therefore he must have been aware of the law laid down by this Court in those judgments which is binding on him on the date when he passed Ext.P13 order and even today. That shows the respect of the Chairman of the Electricity Board for judgments of this Court. I am not elaborating further on that now, because I have more to say about the Chairman's attitude later in this judgment. 7. The second reason for denying the benefits to the petitioners is that, by a decision of the Full Board on 27.9.2002 compassionate employment to dependants of Board employees was restricted to those employees who have availed of invalid pension due to 100% permanent disability caused from accidents that arose out of and in the ## W.P.(C)No.32100 of 2007 **-15-** course of performance of their official duties under the Board. This reason is also unsustainable for two reasons. First of all, an executive decision of the Board cannot overrule a statutory rule. The provision for compassionate employment to dependant of an employee who avails of invalid pension, is contained in Clause 7 of the Kerala State Electricity Board (Appointment of Dependants of Board Employees Who Die In Harness Or Are Permanently Disabled And Are Retiring On Invalid Pension) Regulations 1985, which Regulations were framed by the Board under powers conferred by Section 79 read with Section 15 of the Electricity (Supply) Act, 1948. Regulation 7 thereof, as amended by Amendment Regulations 1992 reads thus: ## “REGULATION - 7 The dependent of a Board Employee who retires on the ground of mental infirmity or who retires on being permanently incapacitated to work, such permanent incapacitation to work being certified by an approved Medical Board duly constituted by Government, shall also be eligible for appointment under these Regulations, provided the period from the date of such retirement to the normal date of retirement of such Board Employees on super-annuation is one year or more”. That Regulation has not been amended even today. It is W.P.(C)No.32100 of 2007 **-16-** settled law that executive orders cannot modify or annul statutory rules. Regulation 7 is a statutory regulation framed under Section 79 of the Electricity (Supply) Act. Therefore, the Board decision which is only an executive order cannot have any effect on the validity or implementation of Regulation 7 as quoted above. I am surprised that the Chairman of the Board who has decades of experience in various executive posts under the Government of Kerala, is not even aware of the basic law relating to such matters. 8. Apart from that, even assuming that the Board decision is applicable to the petitioners, I am satisfied that the 1[st] petitioner was granted invalid pension on suffering 100% permanent disability in an accident arising out of and in the course of performance of his official duties. It is too late in the day for the Board to dispute before me that the 1[st] petitioner suffered very serious injuries in an accident occurred on 3.7.1991 although the Chairman most unkindly tries to belittle the effect of that very serious accident on ## W.P.(C)No.32100 of 2007 **-17-** the 1[st] petitioner to support the Board's illegal decision. The 1[st] petitioner had been under prolonged treatment pursuant thereto. In fact the petitioner's statement in the writ petition that by virtue of the accident his whole left thigh and whole of left upper limb including left middle and ring finger got burnt has not been controverted by the Board, although they vaguely deny the accident without any conviction even for themselves. In fact the Chairman himself in Ext.P13 boasts of the magnanimity of the Board in having employed the 1[st] petitioner with full benefits, for 15 years after his accident with all his disability. Therefore, it is very clear that after the accident the 1[st] petitioner was suffering from the deleterious effects of the injuries sustained in the accident, which ultimately led to his seeking invalid pension. The state of the 1[st] petitioner's physical condition is evident from Ext.P1 (a) certificate issued by a prestigious institution in Kerala namely Sree Chitra Thirunal Institute for Medical Sciences and Technology, Thiruvananthapuram, which is an institute W.P.(C)No.32100 of 2007 **-18-** ## under the Government of India. Ext.P1(a) certificate reads thus: “This is to certify that Mr.Sankara Pillai, 50 years, H/o.Rema, Pullaplavil, Mannar is a case of 'Progressive Supra Nuclear Palsy' registered under Department of Neurology (Hos.No.222290), Sree Chitra Tiruanal Institute for Medical Sciences and Technology, Thiruvananthapuram since 01.12.2003. Progressive Supra Nuclear Palsy is a progressive neurological disease for which there is no effective medical treatment. Mr.Sankara Pillai is functionally disabled and his present condition may get worse. I am recommending for Invalid pension from his present employment.” This certificate has been relied on and referred to in subsequent communications in respect of the 1[st] petitioner's request for invalid pension. In fact the Chairman himself in Ext.P13 order refers to the same. I am of opinion that the attitude of the Chairman in now doubting whether the incapacity is an after effect of the accident, is the biggest ingratitude the Board can show to an employee who admittedly served the Board meritoriously for 15 years despite his disability, as admitted by the Chairman himself. As such, I have no hesitation to hold that the incapacitation of the 1[st] petitioner was 100% and that incapacitation arose ## W.P.(C)No.32100 of 2007 **-19-** out of the accident which happened in the course of the 1[st] petitioner's duties with the Board 15 years back. Therefore, even assuming that the Board decision taken in 2002 is applicable to the 1[st] petitioner's case, then also the Regulation 7 of the Regulations mentioned above is applicable to the 1[st] petitioner's case. 9. A feeble argument is also raised by the learned Standing Counsel for the Board to the effect that in Ext.P16 long term settlement produced by the petitioner also it has been stated that “appointment under compassionate employment scheme would be granted only in cases of dependants of employees who avail invalid pension due to accidents occurred during the course of duty and out of employment, provided the employee is incapacitated to perform his/her duties and is absent from duty consequent to the accident. I have my own doubt whether a settlement can modify a statutory rule, without actually amending the Rule itself. Even apart from the same, admittedly that long term settlement came into force only with effect from W.P.(C)No.32100 of 2007 **-20-** 28.2.2007 long after the 1[st] petitioner availing of invalid pension. A Division Bench of this Court has in the decision of **Bharat Sanchar Nigam Limited v. Tittin 2011 (4) KLT 409** held that compassionate employment being a beneficial provision should be considered on the basis of the law as it obtains on the date when the same became due and subsequent amendments cannot affect a claim under such provision. Apart from that, for the reasons mentioned above, even assuming that the clauses in the long term settlement is applicable, the 1[st] petitioner comes squarely within the four corners of the said provision also. Therefore, I do not have any hesitation to hold that one of the 1[st] petitioner's children have become entitled to compassionate employment under Regulation 7 of the Kerala State Electricity Board (Appointment of Dependants of Board Employees Who Die In Harness Or Are Permanently Disabled And Are Retiring On Invalid Pension) Regulations. Therefore, the writ petition has to be allowed. Consequently the impugned orders are quashed. W.P.(C)No.32100 of 2007 **-21-** 10. I am thoroughly dismayed by the attitude of the Chairman of the Board in this matter. As I have already stated, on 30.9.2011, I was about to dictate judgment allowing the writ petition, when the Standing Counsel for the Electricity Board took time to enable the Electricity Board themselves to consider the matter and I have in my order dated 30.9.2011, quoted above, held that the petitioners' case is an eminently fit case to be considered by the Board with sympathy which ordinarily normal human being should have. I am sad that the Chairman could not imbibe the spirit of my order and that he was not inclined to exercise the sympathy normal human beings should have despite my order. I also feel that this Court was taken for a ride by the Board. When I was about to allow the writ petition, the Board themselves wanted time to consider the matter and I granted time. It is unfortunate that, despite the same, the Chairman has passed Ext.P13 order on totally unsustainable grounds, one of which grounds was held to be unsustainable by me in a judgment dated 27.9.2010 in W.P.(C)No.32100 of 2007 **-22-** W.P. (C) No.12125/2006 and by another learned Judge of this Court by judgment dated 9.11.2011 in W.P. (C) No.11089/2005. It is also unpalatable that the Chairman of the Board is not aware of the judgments rendered by this Court on questions of law applicable to the Board. In fact when the Chairman decided against those decisions, he was actually committing contempt of court and despite the fact that the 1[st] petitioner valiantly with his physical disability served the Board for 15 years and the Board themselves granted him appreciation for his meritorious service, none of those facts prompted the Chairman to view the case of the 1[st] petitioner with the sympathy he and his son deserved. I also find that instead of considering the case imbibing the spirit of the sentiments expressed by me, in my order dated 30.9.2011, the Chairman used that opportunity granted by this Court to find out more reasons to deny relief to the petitioners and expand on the order which I was about to set aside on 30.9.2011. In this connection I find from the files of the Board which were produced before me W.P.(C)No.32100 of 2007 **-23-** by the Standing Counsel for the Board, pursuant to order dated 23.12.2011, that the Legal Adviser of the Board, who is a sitting District and Sessions Judge of the judiciary on deputation to the Board, had advised the Board to grant the benefit to the petitioners in the right perspective as directed in the order dated 30.9.2011, which has been ignored by the Chairman. From the file I also see that the Chief Engineer (M) of the Board also opined that the 1[st] petitioner is entitled to the benefits of Regulation 7 considering 18.2.2005 as his effective date of retirement on invalid grounds which has not even been referred to. As a result the 2[nd] petitioner was forced to amend the writ petition incorporating a challenge against the new order also, incurring further expenditure which an unemployed person could ill-afford. To say the least it was totally unbecoming of a Chairman of an instrumentality of a socialist democratic State the Constitution of which proclaims justice, social, economical and political and equality of status and of opportunity to all citizens of India ## W.P.(C)No.32100 of 2007 **-24-** in its preamble. From notings of the Chairman in the file, I find that instead of considering the matter with the sympathy the petitioners deserved, as directed by me in my order dated 30.9.2011, the Chairman was always trying to find out reasons not to give the benefit to the petitioners, which reflects badly on his human side as well. I stop at that regarding the uncharitable conduct of the Chairman. 11. In the above circumstances, I hold that the 2[nd] petitioner is entitled to compassionate employment under Regulation 7 of the Kerala State Electricity Board (Appointment of Dependants of Board Employees Who Die In Harness Or Are Permanently Disabled And Are Retiring On Invalid Pension) Regulations. Orders in this regard shall be issued and the 2[nd] petitioner shall be admitted to duty pursuant to such appointment, within one month from today. The Board shall also pay to the 2[nd] petitioner interest @ 12% per annum for the delayed payment of retirement benefits due to the 1[st] petitioner from 18.2.2005 till date of payment pursuant to Ext.P12 sanction dated 17.2.2007. W.P.(C)No.32100 of 2007 **-25-** In view of the above findings against the conduct of the Chairman as well as the Board, I am inclined to direct payment of exemplary costs by the respondents to the 2[nd] petitioner. The respondents shall pay an amount of Rs.25,000/- as costs to the 2[nd] petitioner within one month from today. The costs and the interest payable as above, shall not be debited to the funds of the Board. The same shall be recovered from all the persons responsible for denying the due benefits to the petitioners including the present Chairman, who has passed Ext.P13 order. The writ petition is allowed as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/