T. M. Francis v. MMTC Limited and The Deputy General Manager, MMTC Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 21ST DAY OF NOVEMBER 2016/30TH KARTHIKA, 1938** **WP(C).No. 29243 of 2009 (A) ----------------------------** **PETITIONER(S): -------------** **T.M.FRANCIS, AGED 68 YEARS,SON OF LATE SRI.T.P.MATHAI, RETIRED MANAGER OF MMTC LIMITED,THOTTUMKAL HOUSE, THAIKKATTUKARA P.O., ALUVA-683 106, ERNAKULAM DISTRICT.** **BY ADV. SRI.M.N.MATHEW** **RESPONDENT(S): --------------** **1. MMTC LIMITED, REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR, CORE-1,SCOPE COMPLEX, 7, INSTITUTIONAL AREA, LODI ROAD, NEW DELHI - 110 003.** **2. THE DEPUTY GENERAL MANAGER, MMTC LIMITED,SUB-REGIONAL OFFICE, POST BOX NO:3597,JOS TRUST BUILDING, CHITTOOR ROAD,KOCHI 682 035.** **BY ADV. SRI.D.PEETHAMBARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-10-2016 THE COURT ON 21-11-2016, DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 29243 of 2009 (A)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** **EXHIBIT P1 TRUE COPY OF THE PENSION SCHEME IMPLEMENTATION ORDER NO.5.5.89-IR DTD.15.5.1990 ISSUED BY THE RESPONDENT CORPORATION.** - **EXHIBIT P2 TRUE COPY OF THE ORDER NO.106/98/RB ISSUED UNDER REFERENCE NO.08/66/98/RB DTD.27/3/1998 BY THE RESPONDENT EMPLOYER.** - **EXHIBIT P3 TRUE COPY OF THE ORDER NO.CIT-II/SAFUND/04-05/814, DTD.23.7.2004 ISSUED BY THE COMMISSIONER OF INCOME TAX, DELHI II, NEW DELHI.** - **EXHIBIT P4 TRUE COPY OF THE MEMORANDUM OF SETTLEMENT DTD.28.11.2005 SIGNED BETWEEN THE EMPLOYEES AND THE RESPONDENT CORPORATION.** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DTD.20.2.2009 OF THE HON'BLE HIGH COURT OF KERALA IN OP.NO.13900/2002 (D)** - **EXHIBIT P6 TRUE COPY OF LETTER NO.2/969/2002/LAW DTD.19.3.2009 ISSUED BY THE 1ST RESPONDENT ON BEHALF OF THE CORPORATION AND THE WOUND UP TRUST.** - **EXHIBIT P7 TRUE COPY OF THE LETTER NO.2/69/2002/LAW DTD.26.5.2009 ISSUED BY THE 1ST RESPONDENT ON BEHALF OF THE CORPORATION AND THE WOUND UP TRUST.** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT DTD.24.8.2009 OF THE HON'BLE HIGH COURT OF KERALA IN CONT. CASE (C) NO.692/2009 (S).** - **EXHIBIT P9 TRUE COPY OF LETTER DTD.8.4.2010 SENT TO THE DESIGNATED CPIO UNDER RTI ACT.** - **EXHIBIT P10 TRUE COPY OF ORDER DTD.7.3.2011 OF THE CENTRAL INFORMATION COMMISSION.** **EXHIBIT P11 TRUE COPY OF THE LETTER NO.MMTC/CO/PERS/RTI/182/2010 DTD.8.4.2011 ISSUED ON BEHALF OF THE 1ST RESPONDENT.** **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **msv/** ## **ANU SIVARAMAN, J.** = = = = = = = = = = = = = = = = = = = = = = = = = = ## **W.P.(C).No.29243 of 2009** = = = = = = = = == = = = = = = = = = = = = = = = = Dated this the 21[st] day of November, 2016 ## JUDGMENT ## 1.The writ petition is filed seeking the following reliefs:- - i. Issue a writ in the nature of Mandamus, or any other appropriate writ, order or direction calling for the records leading to Exhibit P6 and Exhibit P7 orders issued by the 1[st] respondent and quash the same. - ii. Issue a Writ of Mandamus or any other appropriate writ or order directing the 1[st] respondent to release to the petitioner, forthwith, Rs.1,38,500/- being the arrears of pension at the rate of Rs.2,000/- per month from 01.07.2001 up to 01.10.2009 after adjusting the maximum liability of the petitioner i.e.Rs.62,500/towards 1/4[th] cost of annuity as per Exhibit P1 and Exhibit P2 orders; with interest at the rate of 12 percent per annum from 01.07.2001 until the date of payment. - iii. Issue a writ of Mandamus or any other appropriate writ or order directing the 1[st] respondent to pay monthly pension promptly to the petitioner every month from the month of November 2009 at the rate of Rs.2000/- per month as per Exhibit P1 order. - 2.The petitioner retired on superannuation on 30.06.2001 from the service of the 1[st] respondent. He was entitled to a monthly pension of Rs.2000/- under the Pension Scheme. When the W.P.(C).No.29243/09 2 said amount was not paid, the petitioner has approached this Court filing O.P.No.13900 of 2002 which was allowed by Exhibit P5 judgment. The claim raised by the respondents that the Pension Fund had been wound up and therefore the petitioner was not entitled to pension and only an amount equivalent to the contribution made by the petitioner with interest was to be paid to him was not accepted. It was further held that the acceptance by the petitioner of the amount standing to his credit as his contribution would not dis-entitle him to receive the amounts due to him under the Scheme. The respondents were directed to issue a communication showing the balance payable by them under the scheme and to make payments due to the petitioner under the Scheme as a one time measure within two months. When such amounts were not paid, the petitioner had filed C.O.C.No.692 of 2009 which was disposed of by Exhibit P8 judgment stating that the statement of accounts given by the respondents required adjudication. The calculation statements are under challenge in this writ petition. W.P.(C).No.29243/09 3 - 3.Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents. - 4.The learned counsel appearing for the petitioner argued that the entitlement of the petitioner to pension at Rs.2000/- per month from the date of his retirement as calculated on the basis of Exhibit P5 judgment is Rs.1,38,500/-. He contends that the said amount less the amounts already paid has to be disbursed to the petitioner with interest. The learned counsel contends that C.O.C.No.692 of 2009 had been closed by this Court only because the pleadings did not contain the calculation and quantification of the exact amount due to the petitioner in terms of Exhibit P5. Now that the quantified amount has been claimed it is argued that the respondents are duty bound to release the quantified amount less amounts already paid. - 5.A counter affidavit has been filed by respondents 1 and 2 raising the same claim with regard to winding up of the trust W.P.(C).No.29243/09 4 in the year 1990 and contending that no further amounts are payable to the petitioner. It is further contended that the remaining funds in the trust were also distributed among the beneficiaries and the petitioner would be entitled only to a further amount of Rs.27,810/- subject to deduction of TDS. It is further contended that the claim of the petitioner is hit by res judicata. The learned counsel relies on the decisions reported in **Mysore State Road Transport Corporation v. Babajan Conductor and another** [(1977) 2 SCC 355], **Direct Recruit Class II Engineering Officer's Association** **v. State of Maharashtra** [(1990)2 SCC 715], **Ayichutty v. State of Kerala** [2002(2) KLT 125] and **Rajesh Babu v. State of Kerala** [2013 (4) KLT 147] to contend that res judicata is applicable in proceedings under Article 226 of the Constitution of India as well. 6. I have considered the rival contentions advanced on either side and gone through the pleadings at length. I find no merit in the contention raised by the learned counsel for the respondents W.P.(C).No.29243/09 5 that the issue raised is hit by the principle of res judicata. Petitioner's entitlement has been found by this Court in Exhibit P5 judgment. When the amounts were not paid as directed in Exhibit P5 judgment, the petitioner had approached this Court by filing a Contempt of Court Case. Since the amount calculated was under dispute, the Contempt of Court Case was closed with liberty to challenge the said calculation in appropriate proceedings. Annexure III and V in C.O.C.No.692 of 2009 are Exhibits P6 and P7 in this writ petition. The petitioner has also made a calculation and claimed an amount of Rs.1,38,500/- as his entitlement on the basis of Exhibit P5. In the above circumstances, it was not open to the respondents to raise any contention with regard to the eligibility to pension which was already found in Exhibit P5. All that could be contended was as to any mistake in the calculation of due amount as done by the petitioner. This has not been done. In the above view of the matter, I am convinced that it is not the claim of the petitioner but the contentions raised by the respondents in their counter affidavit that is hit by the principles of res judicata. W.P.(C).No.29243/09 6 7.The stand taken by the respondents in the counter affidavit filed by them is identical to the stand adopted by them in O.P.No.13900 of 2002. By Exhibit P5 judgment the said contention of the respondents was found to be unsustainable. The respondents had therefore been directed to calculate the amount due to the petitioner as pension under the Scheme and to pay the said amount as a one time measure. This has evidently not been done in the instant case. Apart from raising contentions as to the eligibility of the petitioner for pension which is a matter already covered by Exhibit P5 judgment, the respondents have not raised any contentions regarding the correctness of the statement submitted by the petitioner showing his entitlement for monthly pension at the rate of Rs.2000/-. In the above circumstances, this writ petition is allowed. Exhibits P6 and P7, which are calculations made without considering the directions issued in Exhibit P5 judgment, are set aside. The respondents are directed to make payment of W.P.(C).No.29243/09 7 the amount shown in the calculation made by the petitioner less any amounts already paid, within one month from the date of receipt of a copy of this judgment. The balance amount so calculated shall carry interest at the rate of 5% per annum from the date of Exhibit P5 judgment till the date of such payment. sd/- **Anu Sivaraman, Judge** sj