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2010 DIGILAW 61 (KER)

The State Of Kerala v. K. Raghavan

2010-01-21

HARUN-UL-RASHID

body2010
Judgment : 1. State of Kerala and the District Collector, Kollam are the review petitioners. They sought to review the judgment dated 23.3.2009 passed in W.P.(C).No.29695 of 2005. Learned Government Pleader submitted that the Apex Court in State of M.P and Another v. Devkinandan Maheshwari (2003(3) SCC 183) had held that the pension would be payable from the date of order of sanction. He also submitted that the dictum laid down by the Apex Court was followed by a Division Bench of this Court in W.A.Nos.1419/2006 & 1818/2006 and therefore the direction in the judgment that the respondent/petitioner is entitled to pension from the date of application would conflict with the judgment laid down by the Apex Court and Division Bench of this Court and therefore require reconsideration. Hence the review petition. 2. On the basis of the said two decisions, the learned Government Pleader submitted that the respondent/petitioner is entitled to pension only from the date of order of sanction. Admittedly, these two decisions were not brought to the notice of the court at the time when the matter was heard. The question is whether the judgment under review can be recalled on the basis of the said two decisions cited in the review petition. Evidently, there was omission on the part of the review petitioners to cite the decisions of the Apex Court and the Division Bench of this Court. The question is whether the omission on the part of the counsel to cite an authority of law does amount to an error apparent on the face of record so as to constitute a ground for reviewing the judgment. The Apex Court in Dokka Samuel v. Dr.Jacob Lazarus Chelly (1997 (4) SCC 478) held that the omission to cite an authority of law is not a ground for reviewing the prior judgment showing that there is an error apparent on the face of record. Since the review petitioners had committed an error in not bringing to the notice of the court the relevant precedents, in view of the decision of the Apex Court cited supra, and for the reason that failure to bring to the notice of this Court the decisions on the subject, cannot be held to be a ground for review of the judgment. In the said view, the review petition filed by the State is not maintainable and therefore liable to be dismissed. 3. In the said view, the review petition filed by the State is not maintainable and therefore liable to be dismissed. 3. The present case has a long chequered history. It is a finest example of a case where a senior citizen, now aged 90, has meted out bitter experience at the hands of a recalcitrant bureaucrat. His application for pension is dated 29.12.1995. At the time of application for State pension he was aged about 75 years. His application was considered by the Government and the first order was passed on 18.5.1987. The application was rejected stating that the certificates produced by the applicant are not acceptable. The applicant preferred an appeal against the said order. Again the Government considered his application, and by order dated 4.5.1989 his claim was rejected stating that the applicant had not produced any fresh evidence. These two orders are challenged by the applicant in O.P.No.10556 of 2000. The said orders are produced as Exts.P2 and P3 in the said original petition. This Court by judgment dated 31.5.2005, after observing that the petitioner is a person aged 75 years, held that it is only just and proper that the petitioner be granted another opportunity to explain his case to satisfy the respondent that he is a genuine freedom fighter as defined under the Kerala Freedom Fighters Pension Scheme, directed the first respondent to consider and pass orders within a period of one month from the date of receipt of a copy of the judgment. Based on the directions issued by this Court, Government considered the pension application for the third time. Government by order dated 11.8.2005 passed an order stating that the documents available and made available by the petitioner are not sufficient enough to pass orders granting sanction for pension. Therefore the Government passed the third order rejecting his request for grant of pension under the Freedom Fighters Pension Scheme. The present writ petition was filed challenging the said order, marked as Ext.P2. In the writ petition the prayer is to quash Ext.P2 order and for a direction to the second respondent to take the application of the petitioner and pass orders of pension as per the Kerala Freedom Fighters Pension Scheme framed by the Government of Kerala. The present writ petition was filed challenging the said order, marked as Ext.P2. In the writ petition the prayer is to quash Ext.P2 order and for a direction to the second respondent to take the application of the petitioner and pass orders of pension as per the Kerala Freedom Fighters Pension Scheme framed by the Government of Kerala. The legality of Ext.P2 order dated 11.8.2005 was examined by this Court and passed the judgment under review on 23.3.2009 holding that the application of the petitioner did not receive proper attention from the side of the Government. This Court examined the claim of the petitioner on the basis of the documents supporting his claim. This Court examined the reasons stated for rejection of pension, one by one and on consideration of the documents produced and other attendant circumstances, this Court held that orders passed by the Government rejecting the application for pension is unsustainable in law. Apart from examining the relevant documents, this Court also examined all the reasons stated by the Government including the nonavailability of Records Certificate issued by the Superintendent of Police, Quilon. Following the view taken in O.P.No.21180 of 1999 this Court held, simply because at the time of alleged detention in jail for the period from 114 to 1118 (ME),the petitioner was aged 12 years, is not a ground to reject the application for freedom fighters pension. After elaborately considering the case of the petitioner who was aged around 90 years at the time of disposal of the case this Court held that in the light of the findings made above and production of documents showing the eligibility of the certifiers, this Court took the view that the reasons stated by the State Government in Ext.P2 for rejecting the application of the petitioner for pension cannot stand. Therefore, this Court directed the Government to consider the case of the petitioner in the light of the documents referred in the judgment and on the basis of the observations to pass orders within a period of three months from the date of judgment. 4. Therefore, this Court directed the Government to consider the case of the petitioner in the light of the documents referred in the judgment and on the basis of the observations to pass orders within a period of three months from the date of judgment. 4. Though the judgment ordered the review petitioners to comply with the directions of this Court within a period of three months from the date of receipt of a copy of the judgment, the review petitioners did not pass orders within the time granted by this Court, instead, they have filed I.A.No.9284 of 2009, seeking extension of time, with a petition to condone delay of 32 days in filing the said application. This Court by order dated 5.8.2009 granted two more months time for complying with the judgment after condoning the delay. The direction was not complied within the extended time. Thereafter Government filed another I.A.No.11793 of 2009 for extension for a further period of three months from 21.8.2009. The said application was also supported by a petition to condone 33 days delay in filing the application. I.A.No.11793 of 2009 was filed on 24.9.2009. Though no order has been passed by this Court in the said I.A for further extension, the period of further extension sought for in the I.A also expired on 20.11.2009. This Court did not grant further period of extension and yet no order has been passed by the Government. 5. It has been brought to the notice of this Court that as per order dated 15.12.2009 Government considered the case of the applicant in the light of the directions issued by this Court. By the said order the Government was pleased to allow the application for pension. However, in derogation of the directions issued by this Court the application for pension was sanctioned holding that the petitioner is entitled to pension only with effect from the date of sanction order as stipulated in Rule 18 of the Kerala Freedom Fighters Pension Rules. Failure to dispose of the application for pension within the time granted by this Court, invites contempt action against the Government Officer who had passed the order. 6. Failure to dispose of the application for pension within the time granted by this Court, invites contempt action against the Government Officer who had passed the order. 6. The last sentence in the operative portion of the judgment reads thus: "In the event of sanction of pension it is needless to say that the petitioner is entitled to pension from the date of receipt of the application for pension." Quite contrary and in derogation of the direction of this Court the officer in the order dated 5.12.2009 refused to pass orders granting sanction from the date of application. The direction to grant pension from the date of application is thus violated. This is another ground for taking action under the Contempt of Courts Act. 7. It is profitable to observe that whenever a direction is issued by this Court, it is the duty of the officer concerned to comply with the directions even if the officer or his superior officers are of the view that the law applied or reasons stated by the Court are not correct. If the judgment is objectionable, it is the duty of the officer concerned either to file an appeal before the Division Bench or to seek review of the judgment before passing an order. When such remedies are not resorted, it is the bounden duty of the officer concerned to pass orders within the time limit prescribed by the Court and to comply with the directions issued by this Court. He shall not sit over the judgment and pass orders in disregard to the directions issued. At any rate, the conduct of the officer in passing an order in violation of the directions contained in the judgment which was passed in gross disregard to the judgment of this Court, cannot be countenanced. So long as the judgment of this Court is not set aside in appeal or review, the officer concerned shall be bound by the judgment passed by this Court and is bound to comply with the directions of the judgment. In this case what happened is that the officer concerned did not pass the order within the extended time limit prescribed by this Court and the order passed subsequently is in derogation of the directions issued by this Court in the judgment. 8. In this case what happened is that the officer concerned did not pass the order within the extended time limit prescribed by this Court and the order passed subsequently is in derogation of the directions issued by this Court in the judgment. 8. The learned Government Pleader submitted that the pension is payable from the date of the issue of sanction order quoting Rule 18 of the Kerala Freedom Fighters Pension Rules, 1971. In the preceding paragraphs, I have narrated the sequence of events in this case. The application for pension was filed on 29.12.1995. The order granting pension was passed on 15.12.2009. That means, the application was pending for a period of 14 years. There is no provisions in the Rule directing the officer to dispose of the application within a specified time. That does not mean that an application for pension can be disposed of or decided at the whims and fancies of the officers. When there is provision in the Rule that pension sanctioned under the Rules will be payable from the date of issue of sanction of the order, the Rule presumes that application shall be disposed of within a reasonable period. Reasonable period can be a period of three months. At the best, it can be stretched over to a period of maximum of six months. If the application for pension was sanctioned within the period of six months this rule can be squarely applied and the pension can be sanctioned from the date of issue of sanction of the order. The Rule does not contemplate sanction of pension at a distance of time. That may be the reason for not specifying the period within which an application for pension shall be decided. At any rate, passing orders on the application for pension after one year, two years, three years, five years, ten years or fifteen years are not contemplated under the Rules. Considering the merits, there is no justification for granting pension from the date of sanction order to a pensioner who applied for pension at the age of 75. There is no justification for passing order after fifteen years granting pension to a 90 year old man from the date of order. According to me, the Rule was misquoted by the officer who passed the order in order to escape from the liability to pay the pension within a reasonable time. There is no justification for passing order after fifteen years granting pension to a 90 year old man from the date of order. According to me, the Rule was misquoted by the officer who passed the order in order to escape from the liability to pay the pension within a reasonable time. Moreover, the order passed now in December, 2009 is not only against the letter and spirit of Rule 18, it fragrantly violates the direction issued by this Court. This Court keeping in view Rule 18, the facts and circumstance of the case and further fact that the applicant is a senior citizen aged about 90 years and that his application is pending for 14 years, directed the officer concerned to grant sanction from the date of application. Instead of complying with the directions issued by this Court, it is seen that the officer concerned has passed the order which is per-se contempt under the provisions of the Contempt of Courts Act. I shall deal with the issue of contempt in the connected petition filed under the Contempt of Courts Act separately. These facts are stated in detail only to find that neither Rule 18 nor the decisions cited by the learned Government Pleader will aid his case. 7. Learned Senior Counsel Mr.N.Dharmadan, who is appearing for the respondent/petitioner brought to my notice an order dated 9.12.2009 in C.O.C.No.434 of 2009. In that case, considering the fact that the pensionary benefits was denied to the applicant therein for no sufficient reason, this Court refused to rely on Rule 18 of the Kerala Freedom Fighters Pension Rules. After considering the order passed by the officer, produced as Annexure R(a) order, this Court held that the contention based on Rule 18 cannot be justified and directed the officer concerned to pass appropriate orders. The review petition is without any merit, hence dismissed with cost of Rs.3,000/-. Government shall realise the cost from the officers who are responsible for passing the order after the expiry of the date fixed by this Court which is in violation of the direction. The Registry shall send copy of this order to the Chief Secretary to Government and to the Secretary, General Administration Department.