WP(C).Nos. 5283/17 & 30552/17: Babu K. Gopal v. Kerala State Electricity Board Ltd. & Others; C.P. Ashokan v. Kerala State Electricity Board Ltd. & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY ,THE 05TH DAY OF NOVEMBER 2018 / 14TH KARTHIKA, 1940** **WP(C).No. 5283 of 2017** |**PETITIONER**<br>**:**|**PETITIONER**<br>**:**|| |---|---|---| |||**BABU K.GOPAL**| |||**AGED 56 YEARS**| |||**ASSISTANT EXECUTIVE ENGINEER (RETIRED),**| |||**K.S.E.B RESIDING AT SOUPARNIKA, PUZHAVATH,**| |||**CHANGANASSERY P.O., KOTTAYAM DISTRICT-686101.**| |||**BY ADV. SRI.P.M.PAREETH**| ## **RESPONDENTS:** |**1**|**KERALA STATE ELECTRICITY BOARD**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**VIDYUTHIBHAVANAM, PATTOM, THIRUVANANTHAPURAM-**| ||**695 004.**| |**2**|**CHAIRMAN & MANAGING DIRECTOR**| ||**KERALA STATE ELECTIRICITY BOARD LTD.,**| ||**VIDYUTHI BHAVANAM, PATTOM,**| ||**THIRUVANANTHAPURAM, PIN:695 004.**| |**3**|**CHIEF ENGINEER HRM**| ||**KERALA STATE ELECTRICITY BOARD LTD.,**| ||**VIDYUTHIBHAVANAM, PATTOM, THIRUVANANTHAPURAM**| ||**PIN:695 004.**| ## **WP(C).Nos. 5283/17 & 30552/17** ..2.. - **4 ACCOUNTS OFFICER** **PENSION AUTHORISATION, OFFICE OF THE CHIEF ENGINEER (HRM), KERALA STATE ELECTIRICITY BOARD LTD., VIDYUTHIBHAVANAM, PATTOM, THIRUVANANTHAPURAM-695 004.** - **5 DEPUTY CHIEF ENGINEER KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL CIRCLE, KOTTAYAM-686 012.** - **6 BHARATH SANCHAR NIGAM LTD. REPRESENTED BY ITS MANAGING DIRECTOR, REGISTERED OFFICE, BHARATH SANCHAR BHAVAN, HARISH CHANDRA MATHUR LANE, JANAPATH, NEW DELHI-110 001.** - **7 PRINCIPAL GENERAL MANAGER TELECOM DISTRICT, KOTTAYAM-686 001.** - **8 ADDL. R8. CONTROLLER OF COMMUNICATIONS ACCOUNTS** - **DEPARTMENT OF TELECOMMUNICATIONS, GOVERNMENT OF INDIA, KERALA CIRCLE, THIRUVANANTHAPURAM - 695 033.** **ADDL. R8 IS IMPLEADED AS PER ORDER DATED 15/01/2018 IN IA. NO.293/2018.** **BY ADVS.** **SRI.M.K.THANKAPPAN, SC, KERALA STATE ELECTRICITY BOARD LIMITED** **SRI.JOHNSON GOMEZ, SC, BHARAT SANCHAR NIGAM LTD.** **SRI.SUVIN R.MENON, CGC** **SRI.JOHNSON GOMEZ SC BHARAT SANCHAR NIGAM LTD. SRI.M.K.THANKAPPAN SC KERALA STATE ELECTRICITY BOARD LIMIT** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.11.2018, ALONG WITH WP(C).30552/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).Nos. 5283/17 & 30552/17** ..3.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY ,THE 05TH DAY OF NOVEMBER 2018 / 14TH KARTHIKA, 1940** ## **WP(C).No. 30552 of 2017** ## **PETITIONER:** **C.P.ASHOKAN ASSISTANT EXECUTIVE ENGINEER ( RETIRED ),K.S.E.B RESIDING AT 'SREYAS',CHOVVA.P.O., KANNUR DISTRICT- 670 006, BY ADV. SRI.P.M.PAREETH** ## **RESPONDENTS:** |**1**|**KERALA STATE ELECTRICITY BOARD LTD**| |---|---| ||**REPRESENTED BY ITS**| ||**SECRETARY,VIDHYUTHIBHAVANAM,**| ||**PATTOM,THIRUVANANTHAPURAM- 695 004.**| |**2**|**CHIEF ENGINEER HRM**| ||**KERALA STATE ELECTRICITY BOARD**| ||**LTD,VIDHYUDHIBHAVANAM,**| ||**PATTOM,THIRUVANANTHAPURAM- 695 004.**| ## **WP(C).Nos. 5283/17 & 30552/17** ..4.. **3 ACCOUNTS OFFICER PENSION AUTHORISATION,OFFICE OF THE CHIEF ENGINEER ( HRM )KERALA STATE ELECTRICITY BOARD LTD.,VIDHYUDHIBHAVANAM, PATTOM, THIRUVANANTHAPURAM- 695 004.** - **4 DEPUTY CHIEF ENGINEER KERALA ELECTRICITY BOARD LTD.ELECTRICAL CIRCLE,KANNUR- 670 001.** **5 BHARATH SANCHAR NIGAM LTD. REP. BY ITS MANAGING DIRECTOR,REGISTERED OFFICE, BHARATH SANCHAR BHAVAN,HARISH CHANDRA MATHUR LANE, JANAPATH, NEW DELHI- 110 001** - **6 PRINCIPAL GENERAL MANAGER TELECOM DISTRICT, KANNUR- 670 002.** **BY ADVS.** **SRI.M.K.THANKAPPAN, SC, KERALA STATE ELECTRICITY BOARD LIMITED SRI.JOHNSON GOMEZ, SC, BHARAT SANCHAR NIGAM LTD.** **SRI.JOHNSON GOMEZ SC BHARAT SANCHAR NIGAM LTD. SRI.M.K.THANKAPPAN SC KERALA STATE ELECTRICITY BOARD LIMITED** ## **OTHER PRESENT:** **SMT.O.M.SHALEENA FOR ADDL R8 IN C/CASE WPC.5283/17** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.11.2018, ALONG WITH WP(C).5283/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).Nos. 5283/17 & 30552/17** **==> picture [17 x 8] intentionally omitted <==** ## **JUDGMENT** The petitioner in W.P.(C)No.5283 of 2017 who retired from the Kerala State Electricity Board ('the Board' for short) on 31.05.2016, while working as an Assistant Executive Engineer, is aggrieved by the rejection of his request for reckoning the service rendered by him in erstwhile Telecom Department for the period from 25.11.1982 to 10.07.1989, immediately before he joined the Board as a Sub-Engineer. Immediately after his joining the Board, the Deputy Chief Engineer had taken up his case and as per Ext.P2 letter dated 06.10.1990, it was stated that his service as a Technician in the Telecom Department from 25.11.1982, would be recorded in his service ## **WP(C).Nos. 5283/17 & 30552/17** **==> picture [18 x 9] intentionally omitted <==** book. The respondent Board has issued Ext.P3 order, on **01.09.2005** , with respect to reckoning of service rendered by the employees of the Board in other Public Sector undertakings/autonomous bodies, etc, prior to their entry in the Board for the purpose of pension, stipulating certain conditions for the same. It was inter alia stipulated that the employees should have submitted application for appointment in the Board, with the permission of the previous employer; he should have joined the Board also with the permission of the previous employer, etc. It was ordered that past service rendered by the employees of the Board, in the Kerala State Public Sector undertakings/autonomous bodies shall be counted for the purpose of pension in ## **WP(C).Nos. 5283/17 & 30552/17** ..7.. the Board, subject to realisation of the prorata pension liability from the respective public sector undertakings or autonomous bodies. A time limit of one year was prescribed for those who have entered service as on 01.09.2005, for counting their past service for the purpose of pension. In the case of others, a time limit of one year from joining the Board was prescribed. As per clause 6 therein it was decided to reject the request of the employees to remit the pro-rata pension contribution by the employees themselves, in the event of the former employer refusing to remit the same. 2. Even though the petitioners' case was taken up with the Telecommunication Department, it was informed that a Public ## **WP(C).Nos. 5283/17 & 30552/17** ..8.. Limited Company-B.S.N.L was formed in the place of the Telecommunication Department. The Accounts Officer of the Board, addressed the B.S.N.L. as well as the Telecommunication Department requesting to remit the pro-rata pension liability in the case of the petitioner. As the petitioner was not granted the benefit he submitted Ext.P7 representation, and thereafter, filed W.P. (C)NO.37322 of 2016, which was disposed of as per Ext.P8 judgment, directing the 2[nd] respondent to consider his request. Thereafter, as per Ext.P9 order, the Chairman and the Managing Director of the Board, rejected the request of the petitioner on the ground that the Telecom authorities had informed that they are not liable to pay the ## **WP(C).Nos. 5283/17 & 30552/17** **==> picture [18 x 8] intentionally omitted <==** pro-rata pension contribution. It was also pointed out that as per clause 6 of the Board Order, the request of the employees to remit the pro-rata pension contribution by themselves cannot be allowed, even if the former employer refused to pay the pro-rata pension liability. 3. Petitioner is challenging Ext.P9 order as well as clause 6 of Ext.P3 Board Order which denies permission to the employees for remitting the pro-rata pension liability, in cases where the previous employer does not remit the same. 4. The learned counsel for the petitioner relies on the judgment in W.P.(C)No.8695 of 2007, in which this Court found that, there is no logic in not permitting the employees to ## **WP(C).Nos. 5283/17 & 30552/17** **==> picture [22 x 7] intentionally omitted <==** remit the pro-rata contributions by themselves, in case the previous employer does not remit the pro-rata liability. It was found that, such denial would amount to arbitrariness and injustice. Observing that both K.S.E.B. and Department of Telecommunication/B.S.N.L are Government entities, it was held that the petitioner should not be made to suffer because of the fault on the part of such Government entities, when petitioner is prepared to bear the burden to be discharged by his former employer. It was held that, the stipulations in clause 6 of the Board order was arbitrary, unreasonable and without any logic. Accordingly, the petitioner therein was directed to be granted pension reckoning his prior services towards ## **WP(C).Nos. 5283/17 & 30552/17** **==> picture [20 x 6] intentionally omitted <==** qualifying service. 5. W.A.No.571 of 2013, filed against the said judgment was dismissed on 01.10.2013. Therefore, the petitioner has sought for a direction to allow him to remit the pro-rata liabilities, so as to get the pensionory benefits, re-fixed reckoning the service rendered by him in the Telecommunication Department. 6. In W.P.(C)No.30554 of 2017, the petitioner entered service on 19.07.1989 and retired from service while working as Assistant Executive Engineer on 31.05.2017. He had also worked in the Telecommunication Department for the period from 10.11.1983 to 18.07.1989 before he entered into the service of the Board. In his case also, the Accounts ## **WP(C).Nos. 5283/17 & 30552/17** **==> picture [22 x 6] intentionally omitted <==** Officer had as per letter dated 10.08.1997 (Ext.P2 letter produced in his writ petition) addressed the Deputy Chief Engineer, calling for the service book of the petitioner maintained in the Department of Telecommunication, in order to verify the petitioner's claim for reckoning the said service. In his case also the request was rejected on identical grounds. **==> picture [381 x 10] intentionally omitted <==** Telecommunication Department and B.S.N.L. have filed counter affidavit/statements. According to the Board, petitioner has not complied with any of the conditions in Ext.P3 Board order, and therefore he is not entitled to get his pension fixed, counting his service in erstwhile Telecommunication Department. It is ## **WP(C).Nos. 5283/17 & 30552/17** **==> picture [22 x 8] intentionally omitted <==** also pointed out that, petitioner made a request for reckoning the said service, only at the time of his retirement. It is also pointed out that the pro-rata liability to be remitted by the Telecommunication Department or B.S.N.L. is not remitted and hence he is not eligible for such benefits. It is also claimed that, petitioner resigned from the service of the Telecommunication Department and therefore he is not eligible for any benefit, as resignation results in forfeiture of service. 8. The learned counsel for the petitioner, relied on the judgments of this Court in **Babu M. Poulose v. Kerala State** **Electricity Board, Tvm and Others** [2014 (2) KHC 187] and the judgment dated 18.03.2014 in ## **WP(C).Nos. 5283/17 & 30552/17** ..14.. W.P.(C)No.9102 of 2006 as well as the judgment dated 12.06.2012 in W.P.(C)No.37228 of 2010. 9. I heard the learned counsel for the petitioner and the learned Standing Counsel. The question whether the previous service rendered by both employees is liable to be reckoned for the purpose of pension was the subject matter of consideration, in a series of judgments as pointed out by the learned Counsel for the petitioner, where this court directed to reckon such service even permitting the employees to remit the pro-rata liability. 10. Even though the respondents have alleged that the petitioners did not take timely action for getting their prior service reckoned for the purpose of pension, Ext.P2 ## **WP(C).Nos. 5283/17 & 30552/17** **==> picture [22 x 8] intentionally omitted <==** letter produced by both the petitioners, show that the officers of the respondents themselves had taken up the matter, with the Department in which they had worked; when they assured them that the service rendered by them in the previous Departments would be recorded, in the service book. Therefore the respondents cannot deny the request made by the petitioners, on the ground that there was delay in submitting application. 11. The further ground that the petitioners had resigned from service and therefore, their past service got forfeited, cannot also be accepted because the petitioners have resigned from service only to enable them to take up new employment and they have joined the Board on the very next ## **WP(C).Nos. 5283/17 & 30552/17** **==> picture [22 x 9] intentionally omitted <==** working day, on the basis of the orders of appointments. Such technical resignation cannot entail forfeiture of past service. 12. The further question is whether it is necessary that the previous employer should themselves remit the pro-rata contribution. In the judgment in **Babu M. Poulose v. Kerala State Electricity Board, Tvm and Others** [2014 (2) KHC 187] this Court had held that, it is not necessary to remit pro-rata contribution in view of the amendments to Rule 20 of part III KSR. 13. In more or less similar circumstances this court has in the judgment in W.P. (C)No.8695/2007found that the denial of permission to the employees to remit the prorata contribution is arbitrary, illegal and ## **WP(C).Nos. 5283/17 & 30552/17** ..17.. illogical. The said judgment is affirmed in W.A.No.571 of 2013. The respondents have not taken up the matter before the Apex Court. Therefore, they are bound by the said judgment, where clause 6 of Ext.P3 was held arbitrary. In that view of the matter the denial of permission to the petitioners to remit the pro-rata contribution is unsustainable, in the light of the aforesaid judgment. 14. In view of the above circumstances, it is declared that the service rendered by the petitioners in the erstwhile Telecommunication Department prior to their entry in KSEB is liable to be reckoned towards qualifying service for the purpose of pension. Petitioners shall be permitted to remit the ## **WP(C).Nos. 5283/17 & 30552/17** **==> picture [22 x 9] intentionally omitted <==** pro-rata liability of the former employer with the board within a period of one month from the date of receipt of copy of the judgment, in which event the Board shall issue orders re-fixing the pensionary benefits of the petitioners reckoning their services rendered in the erstwhile Telecommunication Department. This shall be done within a period of three months from the date on which they remit the the pro-rata pension liability. Ext.P9 in W.P.(C)5283/2017 is quashed. These writ petitions are allowed to the above extant. ## **Sd/-** ## **P.V.ASHA** ## **JUDGE** PR/07.11.2018 ## **WP(C).Nos. 5283/17 & 30552/17** ..19.. ## **APPENDIX OF WP(C) 5283/2017** **PETITIONER'S EXHIBITS:** **EXHIBIT P1: A TRUE PHOTOCOPY OF THE CERTIFICATE DATED 25.7.89 ISSUED BY THE DISTRICT MANAGER, TELECOM, KOTTAYAM.** - **EXHIBIT P2: A TRUE PHOTOCOPY OF THE LETTER DATED 6.10.90 ISSUED BY THE DEPUTY CHIEF ENGINEER GENERATION CIRCLE, MOOLAMATTOM ADRESSED TO TELECOM DISTRICT MANAGER, MOOLAMATTOM.** **EXHIBIT P3: A TRUE PHOTOCOPY OF THE BOARD ORDER DATED 1.9.2005.** - **EXHIBIT P4: A TRUE PHOTOCOPY OF THE LETTER DATED 10.10.2013 ISSUED BY THE FOURTH RESPONDENT TO THE DIVISIONAL ENGINEER (TELECOM), KOTTAYAM.** - **EXHIBIT P5: A TRUE PHOTO COPY OF THE LETTER DATED 5.4.2014 ISSUED BY THE PRINCIPAL GENERAL MANAGER, TELECOM KOTTAYAM.** - **EXHIBIT P6: A TRUE PHOTO COPY OF THE LETTER DATED 24.10.2014 ISSUED BY THE 3RD RESPONDENT TO ACCOUNTS OFFICER, OFFICE OF THE COMPTROLLER OF COMMUNICATION OF ACCOUNTS.** **EXHIBIT P6(A): A TRUE PHOTO COPY OF THE OFFICE MEMORANDUM DATED 30.5.95 ISSUED BY THE GOVERNMENT OF INDIA.** **EXHIBIT P6(B): A TRUE PHOTOCOPY OF THE B.O.NO.424/92(ESTT.IV/1960/91) DATED 12.3.92.** **WP(C).Nos. 5283/17 & 30552/17** ..20.. |**EXHIBIT P7:**|**A TRUE PHOTO COPY OF THE**| |---|---| ||**REPRESENTATION DATED 7.7.2016**| ||**SUBMITTED BY THE PETITIONER BEFORE THE**| ||**2ND RESPONDENT.**| |**EXHIBIT P8:**|**A TRUE PHOTO COPY OF THE JUDGMENT**| ||**DATED 22.11.2016 IN WPC NO.37322/2016.**| |**EXHIBIT P9:**|**A TRUE PHOTO COPY OF THE PROCEEDINGS**| ||**NO.LASI/119/2016 DATED 1.2.2017.**| ## **WP(C).Nos. 5283/17 & 30552/17** ..21.. ## **APPENDIX OF WP(C) 30552/2017** **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 A TRUE PHOTOCOPY OF THE CERTIFICATE DATED 25.6.98 ISSUED BY THE GENERAL MANAGER, TELECOM DISTRICT, KANNUR.** - **EXHIBIT P2 A TRUE PHOTOCOPY OF THE LETTER DATED 10.8.99 ISSUED BY THE 2ND RESPONDENT ADDRESSED TO THE DEPUTY CHIEF ENGINEER, WORLD BANK PROJECT CIRCLE, VIDHYUTHI BHAVANAM, THRISSUR.** - **EXHIBIT P3 A TRUE PHOTOCOPY OF THE BOARD ORDER DATED 1.9.2005** - **EXHIBIT P4 A TRUE PHOTOCOPY OF THE LETTER DATED 17.4.2012 ISSUED BY THE 6TH RESPONDENT TO THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KANNUR.** - **EXHIBIT P5 A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 20.7.2012 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT** - **EXHIBIT P6 A TRUE PHOTOCOPY OF THE OFFICE MEMORANDUM DATED 30.5.95 ISSUED BY THE GOVERNMENT OF INDIA** - **EXHIBIT P7 A TRUE PHOTOCOPY OF THE B.O. NO.424/92 ( ESTT. IV/1960/91) DATED 12.3.92.** - **EXHIBIT P8 A TRUE PHOTOCOPY OF THE RELEVANT PORTION APPLICATION DATED 2.2.2017 FOR PENSION FORWARDED BY THE HEAD OF OFFICE OF THE PTITIONER TO THE 2ND RESPONDENT.** ## **RESPONDENTS EXHIBITS** **WP(C).Nos. 5283/17 & 30552/17** ..22.. **EXHIBIT R3(a) TRUE COPY OF THE B.O.(FB)No.2574/2005 (Estt.IV/ RECKONING SERVICE/2005)DATED 01.09.2005 EXHIBIT R3(b) TRUE COPY OF THE G.O(P)No.369/87/Fin DATED 31.03.1987 EXHIBIT R3(c) TRUE COPY OF THE GO(P)NO.703/2002/FIN DATED 12.11.2002 EXHIBI T R3(d) TRUE COPY OF THE OFFICE MEMORANDUM DATED 30.05.1995 EXHIBIT R5(a) A TRUE COPY OF THE LETTER AVAILABLE IN THE RECORDS OF THE 6TH RESPONDENT EXHIBIT R5(b) A TRUE COPY OF THE MEMO AVAILABLE IN THE RECORDS OF THE OFFICE OF THE 6TH RESPONDENT**