U. Thankamani v. Kerala State Electricity Board & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 7TH DAY OF JUNE 2017/17TH JYAISHTA, 1939** **WP(C).No. 8015 of 2009 (V) ---------------------------** ## **PETITIONER(S):** **-------------** **U. THANKAMANI, W/O LATE O.V. BALAKRISHNAN, 'SRIVILLA', KOOVODE, P.O.KUTTIKKOL, THALIPARAMBA, KANNUR DIST.** ## **BY ADV. SRI.KALEESWARAM RAJ** **RESPONDENT(S):** **--------------** **1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY THE SECRETARY, KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM.** **2. CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM.** **3. EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL DIVISION, KANNUR.** **R1-R3 BY ADVS. SRI. ASOK M.CHERIYAN, SC, KSEB SRI.K.S.ANIL, SC, KSEB SRI.PULIKOOL ABUBACKER, SC, KSEB SRI.SUDHEER GANESH KUMAR,SC,KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** ## **WP(C).No. 8015 of 2009 (V)** ## **--------------------------** ## **APPENDIX** - **PETITIONER(S)' EXHIBITS ----------------------P1 TRUE COPY OF THE LETTER DATED 15.10.2001 ISSUED BY THE 2ND RESPODENT** - **P2 TRUE COPY OF THE REPRESENTATION DATED 9.3.2006 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPODENT** - **P3 TRUE COPY OF THE LETTER DATED 16.3.2006 ISSUED BY THE 2ND RESPONDENT** - **P4 TRUE COPY OF THE REPRESENTATION DATED 17.11.2006 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT** - **P5 TRUE COPY OF THE LETTER DATED 4.9.20097 ISSUED BY THE 2ND RESPONDENT** - **P6 TRUE COPY OF THE REPRESENTATION DATED 11.12.2008 BEFORE THE 1ST RESPONDENT** - **P7 TRUE COPY OF B.O. NO.461/2001 DATED 23.12.2001 RESPONDENT(S)' EXHIBITS -----------------------** ## **NIL** **TRUE COPY** **P.S. TO JUDGE** **EL** **A.MUHAMED MUSTAQUE, J.** ========================= ## **W.P.(C).No.8015/2009** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 7[th] day of June, 2017 ## **J U D G M E N T** The petitioner is the widow of late O.V.Balakrishnan, who was an Assistant Engineer with the Kerala State Electricity Board. Sri.O.V.Balakrishnan died-in-harness on 1/6/1999. Admittedly, late O.V.Balakrishnan was on leave without allowance from 27/7/1994 till 26/6/1999. Before the expiry of the term of leave without relevance he died. The short issue in this original petition is whether the pay revision order which came into force with effect from 1/7/1998 will enure to the benefit of late Sri.O.V.Balakrishnan or not. The stand of the Board is that since the pay revision is conferred as service benefits, he will lose such benefits and therefore, he was not entitled for revised pension based on the Pay Revision, 1998. Therefore, it is submitted by the learned Standing counsel for the Board that the retiral benefits can be reckoned only based on last drawn pay, prior to pay fixation. ``` WPC 8015/2009 ``` ## **-:2:-** 2. The learned counsel Ms.Thulasi Raj appearing for the petitioner, relying upon the judgments of the Hon'ble Supreme Court in **State of Rajasthan and Others v. Mahendra Nath Sharma [2015 KHC 4442]** and of the Division Bench of this court in **Sreejesh K. v. Union of India and Others [2016 (4) KHC 844]** argued before this court that pay revision is part of service conditions and without the same being mentioned in the relevant rules, an employee cannot be deprived of such pay revision benefits. It is further argued that the reference made in the impugned order as to note (4) of Rule 63 of Part III of the Kerala Service Rules, has no application in this matter in as much as the petitioner has no claim for reckoning the period of leave without allowance as a qualifying service for pension. Per contra, the learned Standing Counsel argued that the denial was based on Board Order dated 3/1/1984 and since there being no challenge to the Board Order, the writ petition is liable to be dismissed on this score alone. He relied on the following judgments: i. **Abdul Razak v. State of Kerala : 2006 KHC 251 ii J.Sreekala v. The State of Kerala and Another : 2007 (1) KHC 605 iii Dr.Krishna Pillai v. State of Kerala : 1988 KHC 386** ## **`WPC 8015/2009`** ## **-:3:-** |**iv**|**Yesodhari Devi M.G. v. State of Kerala**||| |---|---|---|---| ||**and Others**|**:**|**2007 (3) KHC 449**| |**v**|**State of Kerala and Another v.**||| ||**M.P.Gopalan**|**:**|**2007 (4) KHC 431**| |**vi**|**Lukose v. State of Kerala**|**:**|**1995 KHC 297**| |**vii**|**Sreejesh K. v. Union of India and Others **|**:**|**2016 (4) KHC 844**| It is further argued by the learned Standing Counsel with reference to the judgments relied upon by him that once the petitioner forfeited the benefit of pay revision while availing leave without allowance, they cannot be yearned to the say later that they are entitled for the pay revision benefits. 3. Rule 88 of Part I KSR refers to leave without allowances. It is mentioned therein that it shall be regulated by the rules in Appendices XIIA, XIIB and XIIC. Perhaps in this case case, Appendix XIIA alone need be referred. It is apposite to quote clause 4 of Appendix XIIA in this context, which reads as follows:- “4. Permanent officers and non-permanent officers who have completed probation in their entry cadre in the regular service of Government may be granted leave without allowances under these rules. In such cases, for and during the currency of, the period of leave, the officers shall lose all service benefits such as the earning of leave including half pay ``` WPC 8015/2009 ``` ## **-:4:-** leave, pension, gratuity, increment, etc., and also promotion chances as may arise with reference to their seniority in the posts from which they proceeded on leave. They shall also lose seniority in the higher grade/grades with reference to their juniors who might get promoted to such grade/grades before they rejoin duty.” The above would show what are the benefits to which an officer or an employee would stand to lose during the currency of leave without allowance. The rule as above indicates that an employee/officer would lose all benefits in relation to his service, as qualifying service. It is to be noted that a person will be entitled for pension, gratuity, increment and all other benefits except for the currency of period of leave without allowance. Therefore, what is to be understood with reference to clause 4 of Appendix XIIA is suspension of enjoyment of certain benefits attached to the service conditions and not the deprivation itself. Nobody has a case that the officer will not be entitled for pension, gratuity and other benefits. Depriving certain benefits as qualifying service has nothing to do with the pay revision order. The pay revision order has nothing to do with qualifying service. May be the benefits that may arise from pay revision can be related to qualifying ``` WPC 8015/2009 ``` ## **-:5:-** service. Therefore, clause (4) of Appendix XIIA must be understood in relation to deprivation of qualifying service of an officer and not in relation to deprivation of benefits. Therefore, the argument that the officer is not entitled to the benefit of the pay revision order is illegal and unsustainable. No doubt, he will be not be entitled to reckon the period of leave without allowance in relation to any benefits based on the pay revision order. But, certainly, the officer is entitled to reckon pay revision order to fix basic pay and other allowances. 4. According to me, the judgments relied upon by the learned counsel for Board have no application in the matter in as much as those applications are related to counting qualifying service. Certainly, as this Court has observed above, the officer will not be entitled to reckon the aforesaid period as qualifying service benefits based on the pay revision order. However, the officer will be entitled to reckon the pay revision order for the purpose of calculating pension. 5. Learned counsel for the Board further argued that without there being a challenge to the Board order depriving the benefit, the petitioner ``` WPC 8015/2009 ``` ## **-:6:-** cannot maintain the writ petition. This argument has to be repelled for more than one reason. First of all, the Kerala Service Rules would apply to the Board _mutatis mutandis._ The rigour of the statutory provision cannot be diluted by a decision taken by the Board as the service conditions of the Board employee is regulated by the service rules. Further, it is to be noted that the Board never referred such an order in Ext.P3 while rejecting the claim of the petitioner. Therefore, the petitioner cannot be blamed for not challenging such an order. It is also to be noted that by Ext.P7 order, the Board conferred the benefits of pay revision order to such retired employees, who died after 1/7/1998. Therefore, the Board's objection has to be rejected in _toto_ . Pension is a property protected in terms of the Constitution, under Article 300A of the Constitution. The Hon'ble Supreme Court and this Court in several judgements have held that the right to property cannot be deprived without valid reasons. Deprivation of pension based on the revision order is deprivation of property. Certainly, the Board must be mulcted with the liability to pay interest for the difference of the amount. Therefore, the Board shall disburse the difference of the amount ``` WPC 8015/2009 ``` ## **-:7:-** with 6% interest per annum from the date on which which it is payable till the date on which it is paid. The impugned order is quashed to the above extent. The amount shall be paid within four months. The petitioner will be entitled for all retiral benefits in accordance with the pay revision order. The writ petition is disposed of as above. Sd/- ## **A.MUHAMED MUSTAQUE, JUDGE** ms