State of Kerala v. K. Sadanandan and Enquiry Commissioner and Special Judge, Thiruvananthapuram

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI WEDNESDAY, THE 7TH DAY OF MARCH 2018 / 16TH PHALGUNA, 1939 **OP(KAT).No. 368 of 2017** AGAINST THE ORDER IN OA(EKM) 1279/2015 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 03-04-2017 PETITIONER(S)/IST RESPONDENT STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, VIGILANCE DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM-695035. BY GOVERNMENT PLEADER SHRI P.N. SANTHOSH RESPONDENTS/APPLICANT AND 2ND RESPONDENT: 1. K.SADANANDAN, S/O. KESAVAN, AGED 55 YEARS, DRIVER GR-II, OFFICE OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM-695035, RESIDING AT VELIYATHUVILA VEEDU, PAPPANAMCODE, PAPPANAMCODE ESTATE P.O., THIRUVANANTHAPURAM-695019. 2. THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM-695035. R1 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR R1 BY ADV. SRI.JELSON J.EDAMPADAM THIS OP (KERALA ADMINISTRATIVE TRIBUNAL) HAVING COME UP FOR ADMISSION ON 07-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 368 of 2017 (Z) **APPENDIX** PETITIONER(S)' EXHIBITS EXHIBIT-P1 TRUE COPY OF THE O.A (EKM) 1279/2015 EXHIBIT-P2 TRUE COPY OF THE REPLY STATEMENT OF THE IST RESPONDENT EXHIBIT-P3 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT TO THE REPLY STATEMENT OF THE IST RESPONDENT EXHIBIT-P4 TRUE COPY OF THE ORDER DATED 03/04/2017 IN O.A (EKM) 1279/2015 /TRUE COPY/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON** ## **& R. NARAYANA PISHARADI, JJ.** .............................................................................. **O.P.(KAT)No.368 OF 2017** ......................................................................... **Dated this the 7[th] March, 2018** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** The first respondent in the O.A.(EKM)No.1279 of 2015 is the petitioner before this Court. The challenge is against Ext.P4 order, whereby the O.A. was allowed by the Tribunal for reckoning the period from 03.08.1992 till the date of regularisation effected by the Government as qualifying service for granting the pensionary benefits. 2. Heard the learned Government Pleader appearing for the petitioners as well as Mr. Pirappancode V.S. Sudheer, who appears for the first respondent. 3. The sum and substance of the case projected before this Court is that the first respondent herein was serving as a Driver Gr.II , who was initially sponsored by the Divisional Employment **2** ## **O.P.(KAT)No.368 OF 2017** Exchange Officer of the Divisional Employment Exchange, Thiruvananthapuram in the office of the Enquiry Commissioner and Special Judge, pursuant to which, he reported for duty on that day, i.e., on 03.08.1992. Admittedly, there was no cessation of service and he was continuing to discharge the duty as a Driver for quite long. Later, referring to the various rulings rendered by this Court as well as the Apex Court and also seeking for regularisation, the first respondent herein approached the Tribunal by filing O.A.996 of 2013, wherein interference was declined and the O.A. came to be dismissed, which was subjected to challenge by filing O.P(KAT)No.3650 of 2013 before this Court. After hearing both the sides, a Division Bench of this Court, as per Annexure A2 verdict dated 09.03.2015 observed that the petitioner therein was entitled to have some benefits by virtue of the law declared by the Full Bench of this Court in _**Jacob vs. Kerala Water Authority**_ ( **1990(2)KLT 673)** and also by the Apex Court in _**Secretary, State of Karnataka vs. Umadevi**_ **[(2006)4 SCC 1]** to the extent such relief is to be moulded and given to the parties concerned. It was accordingly, the Bench **3** ## **O.P.(KAT)No.368 OF 2017** observed that the petitioner was eligible to be regularised in service at the earliest, so that he would be able to enjoy the fruits of his labour, at least in the matter of retiral benefits by counting the length of service in terms of the said judgment. 4. Pursuant to Annexure A2 verdict, the matter was considered by the Government, who passed Annexure A3 order dated 10.09.2015 regularising the service of the said applicant on humanitarian consideration and as a special case. The first respondent/applicant retired from the service as a regular employee on 31.05.2016. It was thereafter that he approached the Tribunal by filing the present O.A. seeking for anti dating the regularisation to be w.e.f. 03.08.1992, pointing out that much loss and hardships have already been caused to him by not giving effect of the specific direction given by this Court in Annexure A2, while passing Annexure A3. Even though there was a specific observation by this Court that the undisputed service rendered by the applicant was directed to be considered for granting the retiral benefits, the same has been given a gobye, though regularisation has been ordered as per Annexure A3, **4** ## **O.P.(KAT)No.368 OF 2017** virtually denying the pension and such other retiral benefits. This was clearly contrary to the mandate of Annexure A2 verdict passed by this Court and hence interference was sought to be made. The prayers raised by the respondent /applicant before the Tribunal were in the following terms: _“i) call for the records leading to Annexure A6 letter and quash the same._ _` ii) direct the 1[st] respondent to regularise the service of the applicant from 3.8.1992 and grant him all consequential benefits, including pension and other retirement benefits, flowing from the said regularization, instead of 10.9.2015, in terms of Annexure A2 judgment of the Hon'ble High court of Kerala._ _Iii) Declare that the applicant is entitled to have his service regularized from 3.8..1992 and consequently further entitled to all consequential benefits with effect from the said date; and_ _iv) grant such other reliefs as this Hon'ble Tribunal deems fit and proper in the circumstances of this case including the cost of this Original Application.”_ 5. The claim was sought to be resisted by the Department. However, after hearing both the sides, the Tribunal held that the verdict passed by this Court did not intend to grant retrospective regularisation w.e.f.. 03.08.1992 as a matter of course, which **5** ## **O.P.(KAT)No.368 OF 2017** otherwise would involve fixation of pay as on 03.08.1992 with periodical increments and subsequent elevation/promotion; in turn leading to a much higher scale of pay at the time of retirement. Had it been the position, this would have been clearly mentioned in the judgment itself. 6. The relief granted by this Court, as per Annexure A2 was only to ensure that, by virtue of the continuous service of the applicant, some benefit could be extended to him, so as to enable him to enjoy pension, reckoning the service rendered from 03.08.1992 on a notional basis, which did not involve any refixation of pay in the post. The observation made by the Tribunal in paragraph 13 is relevant, and hence the same is reproduced below: _“13. At the same time, we are also very clear in our mind that it is not the intention of the Hon'ble High Court that he need not get any benefits consequent to regularisation. The Hon'ble High Court has clearly observed that “the continuity of his labour should necessarily be accounted to his credit” It has also been held that the applicant “is eligible to be regularised in service at the earliest so that he will be able to enjoy the fruits of his labour at least in the matter of retiral benefits by counting the length of service in terms of this_ **6** ## **O.P.(KAT)No.368 OF 2017** _judgment”. From the above, it is very clear that the decision of the Government in Annexure A3 order, which has no impact whatsoever on the salary or pension of the applicant, is not what is intended by the Hon'ble High Court. It was clearly the intention of the Hon'ble High Court that at least the length of service of the applicant has to be taken into account and he should get at least some pension in accordance with the same. This can only be achieved if the period of provisional service from 03.08.1992 till 10.09.2015 is reckoned for the purpose of calculating pensionary benefits alone and not for any other benefits. It is declared that the applicant is entitled to the benefit. Annexure A6 intimation by the 1[st] respondent is accordingly set aside. The 1[st] respondent shall pass orders within two months from the date of receipt of a certified copy of this order, for counting the service of the applicant from 3.8.1992 to 10.9.2015 for the purpose of calculating the pensionary benefits, including DCRG and Commuted Value of Pension. We make it clear that the period will not count for any other service benefits such as salary, increment, higher grade, pay revision, accumulation of earned leave etc. “._ 7. From the above, it is clear that the Tribunal gave effect to Annexure A2 verdict passed by this Court for causing the prior service from 03.08.1992 to be reckoned on a notional basis to fix the pensionary benefits and to have the same disbursed accordingly. It was in the said circumstance, that Ext.P4 verdict was passed directing the Government or competent authority to **7** ## **O.P.(KAT)No.368 OF 2017** work up the matter and to disburse the eligible amount including the DCRG within the time as specified therein. 8. After hearing both the sides and on going through the materials on record including the verdict passed by this Court in Annexure A2, it is seen that the benefit of prior service from 03.08.1992 was intended by this Court to be reckoned for the purpose of granting the pensionary benefits, which however came to be rejected though indirectly by virtue of Annexue A3 order dated 10.09.2016, where the date of regularisation was not mentioned, which was stated as having effect only from the said date. This has been corrected by the Tribunal to the requisite extent as per Ext.P4. We find that the course pursued by the Tribunal is not assailable under any circumstance. In the said circumstance, interference is declined and the Original Petition is dismissed. We make it clear that no variation of the pay as on the date of retirement of the first respondent/applicant was intended in any manner, but for working out the pensionary benefits based on the last drawn pay, of course, reckoning the total qualifying period on a notional basis from 03.08.1992. **8** ## **O.P.(KAT)No.368 OF 2017** In view of the fact that the time stipulated by the Tribunal is already over, we find it appropriate to grant 3 months' time to the petitioners herein to work out the benefits and to have the same disbursed to the first respondent herein. **P.R. RAMACHANDRA MENON, JUDGE** **R. NARAYANA PISHARADI, JUDGE** lk