High Court Kerala High Court

C.K.Narayanan vs The Kerala State Electricity … on 26 June, 2009

Kerala High Court
C.K.Narayanan vs The Kerala State Electricity … on 26 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 35970 of 2003(F)


1. C.K.NARAYANAN,(ASST.ENGINEER,(RTD)
                      ...  Petitioner

                        Vs



1. THE KERALA STATE ELECTRICITY BOARD,
                       ...       Respondent

2. THE CHIEF ENGINEER(HRM)

3. THE EXECUTIVE ENGINEER,

                For Petitioner  :SRI.M.V.BOSE

                For Respondent  :SRI.C.K.KARUNAKARAN, SC FOR KSEB

The Hon'ble MR. Justice ANTONY DOMINIC

 Dated :26/06/2009

 O R D E R
                       ANTONY DOMINIC, J.
                  -------------------------
                   W.P.(C.) No.35970 of 2003
            ---------------------------------
             Dated, this the 26th day of June, 2009

                          J U D G M E N T

The petitioner joined the service of the Kerala State Electricity

Board on 19/02/1980. On attaining the age of superannuation, he

retired from the service on 31/01/2003. Prior to joining the KSEB,

he had rendered service under the Central Public Works Department

for the period from 10/09/1966 to 18/02/1980. On retirement

from the KSEB, pensionary benefits were granted to the petitioner.

Ext.P5 is the pension payment order, which was sanctioned on

22/07/2003, and the pension payment is to commence from

01/02/2003.

2. However, while, reckoning his pensionary benefits, the

period of services rendered by the petitioner under the Central

Public Works Department was not reckoned. The petitioner

represented the matter before the authorities. However, his claim

was not accepted, and it is therefore, this writ petition is filed

praying to quash Ext.P5 to the extent his services for the period

WP(C) No.35970/2003
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from 01/09/1966 to 18/02/1980 is not reckoned for the purpose

of pensionary benefits. The petitioner also seeks consequential

reliefs.

3. A counter affidavit has been filed, and the reason stated

for excluding the aforesaid period, contained in paragraph 4 of the

counter reads as under:-

“4. It is submitted that the petitioner’s prior service in Central
Public Works Department can be reckoned for pensionary benefits
only if the petitioner’s former employer remits the proportionate
liability to the Respondent Board as laid down in G.O.(P)
369/87/Fin dated 31/03/1987 as adopted by the Board in
B.O.Estt.IV/16033/87 dated 25/07/1989.”

Therefore, the only question is whether the previous employer is

liable to discharge the pro-rata pension liability, in terms of the

Government Order dated 31/03/1987 referred to in paragraph 4 of

the counter affidavit. G.O.(P) 367/87/Fin dated 31/03/1987 reads

as under:-

“G.O.(P) 367/87/Fin. Dated, Trivandrum, 31st March, 1987

Abstract.- Simplification of adjustments on account of
allocation – of Leave Salary and Pension between Central and
State Governments – Orders Issued.

Read:- 1. Office Memorandum No.14(5)86/TA/1029
dated 09/10/1986 of the Government of India, Ministry of
Finance Department of Government of Expenditure, New Delhi.

WP(C) No.35970/2003
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2. Letter No.Co-or.III/12-2/152/964 dated
09/01/1987 from the Accountant General, Kerala, Trivandrum.

O r d e r
In the Office Memorandum cited first Government of India
have in consultation with the State Governments decided to
dispense with the system of allocation of leave salary and
pension between Central and State Government and among
Departments of the various State Governments. The Accountant
General in his letter cited has requested to issue reciprocal
orders. Government after consideration, reiterate the decision of
the Government of India dispensing with the system of allocation
of leave salary and pension between Central and State
Governments as specified below, for compliance by all
concerned.

(a) Leave Salary.- The existing system of allocation or
sharing of the liability on account of Leave Salary Contributions
by Central Government to State Government or vice versa will be
dispensed with. The liability for leave salary will be borne in full
by the Department from which the Government servant proceeds
on leave whether it be his parent Department or a borrowing
Department with whom he is on deputation.

(b) Pension.- The liability for pension including gratuity
will be borne in full by the Central / State Department to which
the Government Servant permanently belongs at the time of
retirement. No recovery of proportionate pension will be made
from Central/State Government under whom he had served.

(c) Contributory Provident Fund.- The liability for
Government contributions will be borne by the parent
Department of the Central or State Government and no share of
contributions will be received from any borrowing Department.

The above provisions are extended to the exchange of
officers between two State Governments.

WP(C) No.35970/2003
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These orders will take effect from 01/04/1987 and apply
to all cases of leave salaries and pensions sanctioned on or after
that date.”

4. A reading of this order shows that by this order, the

Government have dispensed with the system of sharing pension

liability and it is specifically provided that no recovery of

proportionate pension will be made from Central / State

Government under whom the pensioner had served before joining

the service. In the light of the clear wordings of the Government

Order dated 31/07/1987, which was adopted by the Board on

25/07/1989, there is no warrant for the stand it has taken in the

counter affidavit that the Central PWD is liable to discharge is pro-

rata liability.

5. When the writ petition was taken up for hearing, the

learned counsel for the respondent Board placed reliance on

Government Order No.G.O.(P) 703/2002/Fin. dated 12/11/2002,

which provided for remittance of prorata contribution by the

previous employer. However, it is also reported that the said

Government Order was adopted by the Board only from

03/09/2003. As already stated, the petitioner’s retirement was on

31/01/2003, and Ext.P5, the pension payment order was issued on

WP(C) No.35970/2003
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22/07/2003, and the pension has to be paid from 01/02/2003.

The pension of a retired employee is to be settled from the month

next to his retirement and the Government Order dated

12/11/2002 adopted by the Board on 03/09/2003 could not have

retrospective application affecting the pensionary entitlement of the

petitioner. That apart, the respondents have no case in the counter

affidavit filed that it was because of the terms of the Government

Order dated 12/11/2002, which was adopted on 03/09/2003, that

the prior service rendered by the petitioner was not reckoned for

want of the previous employer not discharging the pro-rata

contribution.

6. For these reasons, I am not satisfied that the period

10/09/1966 to 18/02/1980 was excluded for any justifiable

reason. Accordingly, Ext.P5 to the extent it has not reckoned the

aforesaid period will stand set aside, and the respondents are

directed to re-work the pensionary benefits of the petitioner taking

into account the aforesaid period also and release the benefits

within three months of receipt of a copy of this judgment.

The writ petition is disposed of as above.

(ANTONY DOMINIC, JUDGE)
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