Research › Search › Judgment

Madras High Court · body

2011 DIGILAW 4453 (MAD)

K. K Mohanan v. Union of India

2011-11-09

K.GEORGE JOSEPH, P.R.RAMAN

body2011
Judgment : K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER 1. The applicant in this O.A who is presently working in the Kerala State Electricity Board (KSEB) joined the Southern Railway as Commercial Clerk, Palghat Division on 23.09.1985. He was relieved on 30.01.1996 and joined the KSEB on 31.01.1996. The respondents refused to remit the pro-rata pension liability in respect of the applicant to the KSEB. His request to grant pro-rata pension for the service rendered in the Railway as if he retired in 1996 as per Rule 53 of the Railway Services pension Rules, 1993, did not elicit any reply from the respondents. Hence, this O.A is filed praying for the following reliefs: (i) Declare that the applicant is entitled to be granted pension and other retirement benefits with effect from 31.01.1996, duly deeming the applicant to have retired from service on 30.01.1996; (ii) Direct the respondents to grant the applicant monthly pension and all other retirement benefits as if the applicant had retired from Railway Service on 30.01.1996, with all consequential arrears of pension and other retirement benefits, within a time limit as may be found just and proper by this Honble Tribunal; (iii) Award costs of and incidental to this application; (iv) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the. . 2. The applicant submitted that he has more than 10 years of service in the Railway. In terms of Rule 42(2) of the Railway Services Pension Rules, 1993, his resignation from the Railway to join the KSEB will not result in forfeiture of past service. He must be deemed to have retired from service as provided for in Rule 53 of the Railway Services Pension Rules, 1993, read with Railway Board orders on the subject, on and with effect from 30.01.1996. Vide Annexures A-10 and A-11 orders, persons similarly placed as the applicant have been granted the benefits, which are denied to him by the respondents. 3. The respondents in their reply statement submitted that the applicant had exercised his option to count his Railway service along with the service in the KSEB and requested the KSEB to reckon his Railway service for all service benefits in the KSEB. 3. The respondents in their reply statement submitted that the applicant had exercised his option to count his Railway service along with the service in the KSEB and requested the KSEB to reckon his Railway service for all service benefits in the KSEB. Now the applicant cannot change his option and claim pro-rata pension for the service rendered by him nearly after 14 years from his resignation from the Railway for better service prospects in the KSEB. It is for the KSEB to count his past service in the Railway for pensionary benefits. Further, the present O.A. is barred by limitation. This Tribunal was pleased to dismiss OA No.650/2007 which is similar to the present OA, by order dated 02.09.2008. 4. We have heard Mr. T.C. Govindaswamy, learned counsel for the applicant and Mr. Thomas Mathew Nellimoottil, learned counsel for the respondents and perused the records. 5. In the facts and circumstances of this O.A. we do not find any merit in the contention of the respondents that his O.A is barred by limitation. 6. The instant O.A is covered by the orders of this Tribunal allowing O.A. Nos. 838/2005, 839/2005 and 617/2007, which have attained finality. The O.A. No. 567/2009, which is identical to the present O.A, was allowed by this Tribunal vide order dated 07.04.2010. The relevant part of the said order is extracted as under: "6. Considering the facts and circumstances of the OA, we are of the considered view that it only fair and just to condone the delay in filing the OA. The subject matter of this OA is fully covered by the decisions in OA Nos. 838/05, 839/05 and 617/07. In compliance with a direction of this Tribunal in OA No. 838/05, vide letter dated 8.11.2006 (Annexure A-14) Shri O. Mohanan was granted retirement benefits. The relevant part of the said letter is extracted below: "........ As such I am sanctioning the following retirement benefits taking into consideration the service rendered by him in Railways and taking into consideration his date of resignation as 8.2.2001. 1. Pension 2. Family Pension 3. GIS 4. Gratuity 5. PF 6. Eligible Leave salary on Average Pay" 7. Vide letter dated 18.02.2006 (Annexure A-15), Shri G.Pradeep Kumar was advised by the Railway as under: "Sub: O.A.No.839/2005 - G.Pradeepkumar vs. Chief Workshop Manager, S&T Workshop, podannur. 1. Pension 2. Family Pension 3. GIS 4. Gratuity 5. PF 6. Eligible Leave salary on Average Pay" 7. Vide letter dated 18.02.2006 (Annexure A-15), Shri G.Pradeep Kumar was advised by the Railway as under: "Sub: O.A.No.839/2005 - G.Pradeepkumar vs. Chief Workshop Manager, S&T Workshop, podannur. In compliance with the orders of the Honble CAT/Ernakulam in O.A.No.839/05 the Chief Workshop Manager has considered your representation marked as Annexure-A in detail. As per Rule No.53 of the Rly Services (Pension) Rules 1993, a Rly. Servant absorbed in a body where there is a Pension Scheme, he shall be entitled to exercise option either to count the service rendered under Rlys, in that body for pension or to receive pro-rata retirement benefits for the service rendered under the Rlys, in accordance with the orders issued by the Rlys. As such you are hereby advised to exercise an option within a period of one week from the date of receipt of this letter, for the grant of retirement benefits in clear terms without any ambiguity to process your case further." (emphasis supplied) 8. Operative part of the order of this Tribunal in O.A. No.617/07 is reproduced as follows: "11. In view of the above, the O.A is allowed. It is declared that the applicant had applied through proper channel when he wanted to join K.S.E.B. His services for 13 years in the Railways if adequate enough for qualifying for terminal benefits, the applicant shall be paid his dues in accordance with the rules. This order shall be complied with, within a period of four months from the date of receipt of a copy of this order. No costs." 9. In compliance with the above direction, the Southern Railway had issued order dated 2.6.2009 to Shri N. Sankar, which reads as follows: "In terms of this office order No.47/99/RG(M) dated 8.12.99, resignation tendered by Shri N. Sankar, Sr. Goods Driver, Offg. as CRC/ERS in scale 5500-9000 vide his letter dt. 3.12.99 was accepted by the competent authority by waiving the notice period to join as Asstt. Goods Driver, Offg. as CRC/ERS in scale 5500-9000 vide his letter dt. 3.12.99 was accepted by the competent authority by waiving the notice period to join as Asstt. Engineer, KSEB of Kerala State and accordingly his services were terminated on the afternoon of 09.12.1999, Honble Central Administrative Tribunal, Ernakulam Bench in OA 617/07 filed by Shri N. Sankar has passed orders declaring that the applicant had applied through proper channel when he wanted to join KSE B and to pay him the dues considering his service in Railways. Accordingly, the services of Shri N. Sankar is deemed to have been terminated with effect from 09.12.1999 for the grant of terminal benefits as per rules in force. This has the approval of the competent authority." (emphasis supplied) 10. The Rule 53 of the Railway Service (Pension) Rules, 1993, set out as under: a) In RuIe 53, for sub-rule (1) the following sub-rule shall be substituted- " A railway servant , who has been permitted to be absorbed in a service or post in or under a Corporation or Company wholly or substantially owned or controlled by the Central Government or a State Government or in or under a body controlled or financed by the Central Government or a State Government, shall be deemed to have retired from service from the date of such absorption and subject to sub rule (3), he shall be eligible to receive retirement benefits , if any, from such date as may be determined in accordance with the orders of the railways applicable to him." (emphasis supplied) 11. The rules and various pronouncements of this Tribunal are clearly in favour of the applicant. He had obtained NOC from the Railway for appearing in the interview in the KSEB. On selection by the KSEB as Sub Engineer he submitted his technical resignation which was accepted by the Railway with effect from 7.9.2000. All formalities have been complied with by the applicant. As the Railway had refused to remit Rs. 1,36,968/-with compound interest to the KSEB towards pro-rata pension and DCRG, there is no option left for the applicant but to ask for pro-rata pension and other pensionary benefits as per Rule 53 read with Rule 69 of the Railway Service (Pension) Rules, 1993. As a model employer, the Railway should have suo motu settled the dues payable to the applicant upon his technical resignation without any delay. As a model employer, the Railway should have suo motu settled the dues payable to the applicant upon his technical resignation without any delay. The letter dated 27.08.2004 (Annexure A-11) shows that the applicant had approached the respondents long before filing this OA.. The said letter is reproduced as follows: "I joined the Railways on 17.07.1989 as Diesel Assistant. Later I technically resigned from the Railways w.e.f. 7.9.2000, which was accepted and I was relieved as per letter No. J/P 509/V/PR/JM 4553 dated 7.9.2000 issued by the Sr. DPO/PGT. I joined the KSEB as a Sub Engineer and was requesting that the service rendered by me be reckoned as part of service in the KSEB. The KSEB calculated the pension liability for the qualifying service rendered by me from 17.7.1989 to 7.9.2000 as Rs. 1,36,968/-and requested the Railway authorities to remit the same by letter No. EB5/G1/CCRR/2003-04/1514 dated 12.09.2003 addressed to the Personnel Officer, DRM/S.Rly./Pgt. However, I am now told that Sr. DPO/TVC has given a reply vide letter No. J/P 509/V/JM 4553 dated 20th May, 2004 stating that the liability for pension including gratuity should be borne in full by the Central/State Government to which the Government servant permanently belongs at the time of retirement. However, the above contention has not been accepted by the KSEB so far. At any case, in order to avoid further delay in the matter I request that I may be granted pro- rata pension for the service rendered by me in the Railways as if I had retired from service on 7.9.2000. I am entitled to the above benefits as per Rule 53 of the Pension Rules. Kindly be pleased to arrange to grant me pension and other retirement benefits as above." 12. The averment made by the respondents that the applicant did not make any representation to the Railway for pensionary benefits prior to filing this OA is not factually correct. The legal position is settled in favour of the applicant as the orders of this Tribunal in the cited cases have become final. Factually and legally, the respondents have no grounds to deny the applicant his retirement benefits. The applicant has been forced to resort to litigation on account of the failure on the part of the respondents to meet their obligation towards the applicant. Factually and legally, the respondents have no grounds to deny the applicant his retirement benefits. The applicant has been forced to resort to litigation on account of the failure on the part of the respondents to meet their obligation towards the applicant. The reliance of the respondents on Government Accounting Rule, 1990, to wriggle out of their statutory obligation to grant pro-rata pension and gratuity to the applicant is totally misplaced. In the interest of justice, the OA deserves to be allowed. 13. It is declared that the applicant is entitled to grant of pension and other retirement benefits with effect from 8.9.2000 duly deeming him to have retired from Railway service with effect from 7.9.2000. The respondents are directed to grant the applicant monthly pension and all other retirement benefits including the arrears of pension, within a period of two months from the date of receipt of a copy of this order. 14. The O.A. is allowed as above with no order as to costs." 7. The Writ Petition (C) No. 20632/2010 challenging the aforesaid order of this Tribunal, was disposed of by the Honble High Court of Kerala on 14.12.2010 as under: "Writ Petition is filed by the Railways challenging the order of the Central Administrative Tribunal ordering pension to the first respondent for the period he served in the Railways which is 11 years. Admittedly, the first respondent after serving the Railways for 11 years left it and joined the Kerala State Electricity Board wherefrom he is said to have retired. The first respondents claim is that either he should get pension from KSEB reckoning his past service in the Railways which involves pro-rata contribution by the Railways or otherwise he is entitled to pension independently from the Railways for the period he served. Counsel for the first respondent referred to Rule 53 of the Railway Pension Rules which provides for Railways directly giving pension to those who left the services to join other Corporations or Departments under the control of the Government. Though counsel for the Railways referred to a Government Order produced in writ petition which fixes liability for payment of pension for the full service by the Corporation or organisation wherefrom an employee retires, respondent submitted that in several cases similar orders are passed in C.A.T and Railways have given pension. Though counsel for the Railways referred to a Government Order produced in writ petition which fixes liability for payment of pension for the full service by the Corporation or organisation wherefrom an employee retires, respondent submitted that in several cases similar orders are passed in C.A.T and Railways have given pension. Since the organisation involved in this case, that is, Electricity Board, is under the State Government there is likelihood of their following State Rules so far as pension is concerned. What we feel is that the first respondent is entitled to pension, either independently from the Railways or he should get pension from the Electricity Board reckoning his service in the Railways as well. We, therefore, dispose of this writ petition by directing the Railways to either grant pension in terms of Rule 53 of the Railway Pension Rules for the services the first respondent rendered in Railways and communicate the same to the Electricity Board or to make contribution if that is the procedure for K.S.E.B to give pension to the first respondent reckoning his service in the Railways also. We direct the KSEB to co-operate with the Railways by furnishing all information required in regard to settling the pension claim of the first respondent in terms of the Tribunals order modified by us as above. So far as the date of commencement of entitlement of pension is concerned, both sides do not know as to whether the first respondent is in service or already retired. It is for the Railways to consider as to the date of entitlement for pension with reference to the norms and grant pension, if already eligible, without any delay. If pension is payable under the pension rules only after actual retirement of the first respondent from KSEB, then Railways can wait until such retirement and grant pension thereafter." 8. We are bound by the decision of the Honble High Court, notwithstanding the decision of this Tribunal in O.A. No. 650/2007. The respondents have already complied with the orders of this Tribunal in O.A. Nos. 838/2005, 839/2005 and 617/2007. 9. In the light of the orders in O.A.Nos.838/2005, 839/2005 and 617/2007 and the order of the Honble High Court in W.P.(C) No. 20632/2010, we allow this O.A as under. 10. The respondents have already complied with the orders of this Tribunal in O.A. Nos. 838/2005, 839/2005 and 617/2007. 9. In the light of the orders in O.A.Nos.838/2005, 839/2005 and 617/2007 and the order of the Honble High Court in W.P.(C) No. 20632/2010, we allow this O.A as under. 10. The respondents are directed to either grant pension in terms of Rule 53 of the Railway Services pension Rules, 1993, for the service the applicant rendered in the Railway and communicate the same to the KSEB or remit pro-rata pension liability in respect of the applicant to the KSEB within 60 days from the date of receipt of a copy of this order. 11. No order as to costs.