V.C. REMMY JOSE v. UNION OF INDIA AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **WEDNESDAY, THE 6TH DAY OF JANUARY 2016/16TH POUSHA, 1937** ## **WP(C).No. 16339 of 2004 (T)** **----------------------------** ## **PETITIONER(S):** ## **--------------------------** **V.C.REMMY JOSE, ASSISTANT ENGINEER (MECHANICAL) (RTD) COCHIN PORT TRUST RESIDING AT H.NO.XV/353, MOOLAMKUZHY, MUNDEMVELI P.O. COCHIN-682 507.** ## **BY ADVS.SRI.C.S.GOPALAKRISHNAN NAIR SMT.PAMEELA REMMY JOSE** **RESPONDENT(S):** - **----------------------------** **1. UNION OF INDIA** - **SECRETARY, MINISTRY OF SURFACE TRANSPORT, NEW DELHI.** **2. COCHIN PORT TRUST REPRESENTED BY ITS CHAIRMAN, COCHIN PORT TRUST WILLINGTON ISLAND COCHIN-9.** **3. THE CHIEF MECHANICAL ENGINEER, COCHIN PORT TRUST, WILLINGTON ISLAND, COCHIN-9.** **4. THE MECHANICAL SUPERINTENDENT, COCHIN PORT TRUST, WILLINGTON ISLAND, COCHIN-3.** **5. THE FINANCIAL ADVISER AND CHIEF** - **ACCOUNTS OFFICER, COCHIN PORT TRUST, WILLINGTON ISLAND COCHIN-9.** - **Addl.6. CHIEF GENERAL MANAGER NAVAL ARMAMENT DEPOT, ALWAYE.** - **(ADDL. R6 IS IMPLEADED AS PER ORDER DATED 18.02.2013 IN IA 2669/2013)** **R,R1 BY ADV. SRI.A.SUDHI VASUDEVAN, ADDL.CGSC R1 BY ADV. SRI.P.J.PHILIP, C.G.C R1 BY ADV. SRI.T.SANJAY, CGC R2-R5 BY ADV. SRI.V.ABRAHAM MARKOS R2-R5 BY ADV. SRI.BINU MATHEW R2-R5 BY ADV. SRI.ABRAHAM JOSEPH MARKOS R2-R5 BY ADV. SRI.TOM THOMAS (KAKKUZHIYIL) R2-R5 BY ADV. SRI.ISAAC THOMAS R BY SMT.T.D.RAJALAKSHMI, SCGSC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 16339 of 2004 (T)** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXT.P1COPY OF THE CERTIFICATE ISSUED BY THE DIRECTOR, INDO NORWEGIAN PROJECT, ERNAKULAM DTD. 1.3.68.** **EXT.P2COPY OF THE SERICE DISCHARGE CERTIFICATE ISSUED BY THE REAR ADMIRAL, HEAD QUARTERS, SOUTHERN NAVAL COMMAND, COCHIN DTD. 17.7.71.** - **EXT.P3COPY OF THE REPRESENTATION DTD. 12.8.83 SENT BY THE PETITIONER TO THE CHAIRMAN COCHIN PORT TRUST THROUGH PROPER CHANNEL** - **EXT.P4COPY OF THE LETTER DTD. 13.9.83 ISSUED BY THE MECHANICAL SUPERINTENDENT.** - **EXT.P5COPY OF THE LETTER DTD. 11.10.83 SENT BY THE PETITIONER TO THE MECHANICAL SUPERINTENDENT COCHIN PORT TRUST.** - **EXT.P6.COPY OF THE LETTER DTD. 3.1.85 ISSUED BY THE MECHANICAL SUPERINTENDENT, COCHIN PORT TRUST.** - **EXT.P7COPY OF THE REPRESENTATION DTD. 24.7.87 SUBMITTED BEFORE THE CHAIRMAN, PORT TRUST.** - **EXT.P8COPY OF THE LETTER DTD. 31.8.88 SENT BY THE CHIEF MECHANICAL ENGINEER TO THE ACCOUNTS OFFICER INTEGRATED FISHERIES PROJECT.** - **EXT.P9COPY OF THE REPRESENTATION ADDRESSED TO THE MECHANICAL SUPERINTENDENT DTD. 20.10.92.** - **EXT.P10 COPY OF THE REPRESENTATION DTD. 21.10.92 SENT TO THE CHIEF MECHANICAL ENGINEER** - **EXT.P11 COPY OF THE LEETTER DTD 9.11.92 SENT BY THE MECHANICAL SUPERINTENDENT TO THE NVAL ARMAMENT SUPPLY OFFICER** - **EXT.P12 COPY OF THE LETTER DTD. 20.5.93 ADDRESSED TO THE MECHANICAL SUPERINTENDENT COCHIN PORT TRUST** ## **EXT.P13 COPY OF THE REPRESENTATION DTD. 2.1.94 ADDRESSED TO THE CHIEF MECHANICAL ENGINEER.** - **EXT.P14 COPY OF THE LETTER DTD. 21.6.94 SENT BY A.A.S.O (ADMINISTRATION) NAVAL ARMAMENT DEPOT.** - **EXT.P15 COPY OF THE LETTER DTD. 12.7.94 SENT BY THE PETITIONER TO THE GENERAL MANAGER, NAVAL ARMAMENT DEPOT ALWAYE** - **EXT.P16 COPY OF THE LETTER DTD. 12.8.94 SENT BY THE AASO (ADMINISTRATION) NAVAL ARMAMENT DEPOT** **CONTD..2..** **.. 2 ..** ## **WP(C).No. 16339 of 2004 (T)** **EXT.P17 COPY OF THE REPRESENTATION DTD. 18.3.95 SENT BY THE PETITIONER TO THE FLAG OFFICER COMMANDING-IN-CHIEF** **EXT.P18 COPY OF THE REPRESENTATION DDTD. 10.4.01 SENT TO THE CHAIRMAN COCHIN PORT TRUST** **EXT.P19 COPY OF THE LETTER DTD. 17.7.02** **EXT.P20 COPY OF THE LETTER REPRESENTATION DTD.18.9.03.** ## **RESPONDENTS EXHIBITS:** **EXT.R1(A) COPY OF THE LETTER DDTD. 20.7.84 ISSUED BY THE INTEGRATED FISHERIES PROJECT.** ## **// TRUE COPY //** **P.A TO JUDGE** ## **SB** ## **K. VINOD CHANDRAN, J.** ## **===================== W.P.(C) No.16339 of 2004 - T** ## **====================== Dated this the 06[th] day of January, 2016** ## **J U D G M E N T** The petitioner is concerned with the counting of service, which he had rendered in the Naval Armament Depot (herein after referred to as 'NAD') prior to his joining in the Cochin Port Trust and reckoning of such service for the purpose of pension. The petitioner joined the Cochin Port Trust on 11.01.1971 and after serving the Cochin Port Trust for 30 years 2 months and 20 days, he retired on 31.03.2001. The petitioner had prior service in the Indo-Norwegian Project (herein after referred to as 'INP') as evidenced by Ext.P1 between 10.08.1965 to 24.01.1968. Further he had service in the NAD between 25.01.1968 08.01.1971 evidenced by Ext.P2. 2. The petitioner resigned from the service of the NAD **2** W.P.(C) No.16339 of 2004 - T and joined Cochin Port Trust on 11.01.1971. On 12.08.1983 by Ext.P3, the petitioner sought for reckoning of his service in the INP as also the NAD. The petitioner's request was answered by Ext.P6 by the Cochin Port Trust. By Ext.P6, it was specifically informed that the service rendered in the Project was not possible of being reckoned for pensionary purposes, since the Project had declined payment of pro-rata pension. The Cochin Port Trust informed the petitioner that the NAD had agreed to meet the liability for pension, however, the pensionary liability could be computed only at the time of retirement and he would have to wait till then. The petitioner had been, even after that, making requests, which eventually resulted in Ext.P14 being issued by NAD, finding that the petitioner's service could not be reckoned, since the petitioner had voluntarily resigned from service and that the same was not with the permission of the NAD, nor the application for appointment to the Cochin Port Trust made through proper **3** W.P.(C) No.16339 of 2004 - T channel. Ext.P14 was issued on 24.06.1994. 3. It is pertinent that the petitioner had not challenged Exts.P6 or P14. Ext.P6 clearly intimated that the petitioner's service with the INP was not liable to be reckoned for pensionary benefits. The petitioner also in the writ petition does not have a claim with respect to the service in the INP. The petitioner's claim is confined to the service in the NAD, but however no explanation is offered as to why Ext.P14 was not challenged at the appropriate time. Though by Ext.P6 issued by the Port Trust it is seen that the NAD had consented to meet the liability of pension, the NAD cannot be held down to any such promise since there is no document generated by the NAD. Ext.P14 is a specific communication rejecting such consent disabling the petitioner from consideration of reckoning of service for pensionary benefits, since the fresh appointment at the Cochin Port Trust was not in compliance with Section 26(2) of the Central Civil Services Pension Rules, **4** W.P.(C) No.16339 of 2004 - T 2013 (for brevity 'the Rules'). 4. The learned Counsel for the petitioner makes a feeble attempt to contend that Ext.P14 was never served on him. It has to be noticed that the said document has been produced by the petitioner and in paragraph 15 of the writ petition, specific reference is made to the receipt of such letter dated 21.06.1994, by the petitioner himself and there is no averment as to the same having been received far later. 5. The further contention raised by the petitioner is that, in Ext.P7, one another person was granted such pension even without the pro-rata pensionary liability being shared by the former employer, which has also been averred in paragraph 11 of the writ petition, which it is contended, is not refuted by the respondents. A mere grant of pension to another person and the averment made to that account alone, would not entitle an employee to claim for similar treatment especially, when there is nothing in the rules provided to **5** W.P.(C) No.16339 of 2004 - T enable such reckoning of pensionary benefits, without the liability for the earlier period of service being shared by the erstwhile employer. Further it is to be noticed that the petitioner retired on 31.03.2001 and has chosen to file the instant writ petition after three years; only on 22.03.2004. 6. The petitioner relies on **Asger Ibrahim Amin v. Life Insurance Corporation of India [2015(5) KHC SN 35 (SC)]** and a decision of a learned Single Judge of this Court in [ **E.K Varghese** v. **State of Kerala (W.P.(C) No.33341 of 2010 dated 07.03.2014)]** . **Asger Ibrahim Amin** (supra) was a case, in which on resignation of an employee from the LIC, after 20 years, it was found that the past service would be forfeited and no pension would be payable as per the Rules. The Hon'ble Supreme Court found that the State should be a model employer and should construe the provisions of the beneficial legislation in a manner that extends the benefits to its employees instead of curtailing it. The said finding was **6** W.P.(C) No.16339 of 2004 - T specifically on the facts disclosed in the above case were the employee therein, who had served 20 years, was denied the entire pension for reason of the resignation alone. The rules also provided for a voluntary retirement, later to the resignation of the employee and it was held that the resignation could be deemed to be one of retirement especially since the forfeiture clause mainly referred to termination of services as a punitive measure. The facts also disclose that therein the employer had allowed the resignation without demur and even waiving the notice period. The facts hence are clearly distinguishable and here it is a claim of reckoning of service which was never agitated within a reasonable time of its rejection by the erstwhile employer. 7. **E.K. Varghese** (supra) was again a case in which the reckoning of service in an aided school to be reckoned for the purpose of service despite he having resigned from service. Learned CGSC appearing for the NAD would contend that the **7** W.P.(C) No.16339 of 2004 - T said case was one, in which the Rule itself was declared unconstitutional and in any event the State had filed an appeal in which the cited judgment has been set aside. In such circumstance, for reason of the petitioner having not challenged Ext.P14, within a reasonable time from the issuance of the same and for the reason of the petitioner having not approached this Court within a reasonable time from his retirement, as also for the claim of the petitioner being specifically prohibited by Rule 26(2) of the Rules, the writ petition is found to be devoid of merit and the same would stand dismissed. No costs. **Sd/-** **K. VINOD CHANDRAN, JUDGE** // true copy // SB/06/01/2016 P.A to Judge.