IN THE HIGH COURT OF KERALA AT ERNAKULAM
Con.Case(C).No. 538 of 2009(S)
1. M.V.VISWANATHAN, S/O.RAMAN NAIR,
... Petitioner
Vs
1. SHRI.T.P.SENKUMAR, IPS,
... Respondent
For Petitioner :SRI.N.UNNIKRISHNAN
For Respondent :SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :09/02/2010
O R D E R
P.R.RAMAN, AG. C.J.
& S.S.SATHEESACHANDRAN, J.
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C.O.C.No.538 of 2009
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Dated this the 9th day of February, 2010
O R D E R
SATHEESACHANDRAN, J.
Petitioner is the writ petitioner in O.P.No.13110/03,
which was disposed of by Annexure (I) judgment dated
20.6.2008. Petitioner was appointed as a driver in the Kerala
State Road Transport Corporation (for short “the
Corporation”), the respondent in the writ petition, pursuant to
advice issued by the Public Service Commission. He was
initially appointed on daily wages on 14.10.1992, but, later
regular appointment was given with effect from 6.10.1996.
He was granted pension, on his retirement from service,
reckoning his period of service only from the date of
regularisation i.e. 6.10.1996. Similarly placed employees like
him, who were initially appointed on casual basis till the date
of regularisation, were given additional benefits in pension,
by virtue of a judgment rendered by this court was his case in
the writ petition filed seeking identical reliefs. Ext.P11
judgment previously rendered by this court produced in the
writ petition, was relied by the petitioner for the relief
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canvassed. Under Annexure (I) judgment, the writ petition
was disposed of directing the respondent “to give pension to
the petitioner counting his service on daily wages also subject
to his satisfying the required service in terms of Clause 3 of
Rule extracted in Ext.P11 judgment”. The writ appeal
preferred by the respondent Corporation was dismissed by
Annexure (V) judgment, but providing for extension of time
for implementing Annexure (I) judgment. Petitioner has filed
the above contempt petition, setting forth a case that the
directions given by this court in Annexure (I) judgment as
affirmed by Annexure (V) judgment had been wilfully
disobeyed and not given effect to, by the alleged contemnor,
the Managing Director of the Corporation.
2. In the counter affidavit filed by the alleged
contemnor, it is averred that pension orders had been issued
granting the petitioner the benefits as provided in the
Pension Rules strictly in compliance with the directions
issued in Annexure (I) judgment. With the counter affidavit, a
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copy of the pension order issued was produced as Ext.R1(a).
3. Petitioner has filed a reply affidavit contending
that the pension order has been issued by an incompetent
authority and the pension had been revised disobeying and
discarding the directions given in Annexure (I) judgment. An
additional counter affidavit was thereupon filed by the
alleged contemnor producing a revised pension order issued
by the Managing Director of the Corporation, asserting that
in compliance with the Pension Rules and also directions in
Annexure (I) judgment revised pension had been extended to
the petitioner, reckoning the period of his service on daily
wages also as per the agreement referred as No.3 in Ext.R1
(c). In Ext.R1(c)the pension order issued, it is stated that as
per Clause 23 of the Pay Revision Agreement of 1997, in
calculating the qualifying service of employees, who had
worked previously on daily wages for pension the duty
performed by them on casual basis has to be reckoned for
zero day as zero, 1 to 10 days as half month and 10 or above
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days as a month. The petitioner, had served on daily wages
during the period from 14.10.1992 to 10.12.1995, till he was
given regular appointment and his qualifying service for
pension reckoned with reference to the dates served in a
month during such period of casual service, it is stated, is
only 5 months. His service had been calculated for pension
taking the above period of 5 months as well and accordingly
pension was fixed and benefits extended to him.
4. We heard the counsel on both sides.
5. The main thrust of the argument canvassed by the
learned counsel for the petitioner is that Ext.R1(c), the
pension order issued is incorrect as it has not reckoned his
service from the date of his appointment on daily wages as
qualifying service for pension. In the case of other similarly
placed employees, pensionary benefits by counting the daily
wages service had been provided, but a differential treatment
is made to him, disobeying the directions given by this court
in Annexure (I) judgment, is the submission of the learned
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counsel. Learned counsel for the petitioner submitted that as
and when the petitioner was appointed on daily wages, a
substantive vacancy of such post was available in the
respondent Corporation and so much so, his initial
appointment on daily wages has to be taken in fixing the
period of his service for the purpose of pension. Reliance has
been placed on the decision in District Transport Officer v.
Kunchan {2009(3) KLT 954} to contend that if a person
was entitled to be treated as a regular employee on he being
advised by the Public Service Commission, it would be illegal
to proceed to appoint him as a daily wages employee or a
casual employee.
6. After going through the affidavits, counter
affidavits and other materials produced and also taking note
of the reply affidavit and also additional counter affidavit, we
find that there is no merit in the submission made by the
counsel. The petitioner has no case that in the case of
calculating the pensionary service of employees appointed
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initially on daily wages, but later appointed on
substantive vacancy and regularisation of their service
from the date of such appointment, the terms of the Pay
Revision Agreement of 1997 covered by reference No.3
in Ext.R1(c) order is inapplicable and some other Rule or
Regulation is in force. In a contempt proceedings, the
only question that emerges for consideration is whether
the alleged contemnor has wilfully and deliberately
violated the orders/directions of a court and such act
amounts to a contumacious conduct lowering the
majesty of the court. Whether the direction/order in
Annexure (I) judgment as confirmed by Annexure (V)
judgment, has been complied with by the alleged
contemnor or not is the sole question to be examined in
the present proceedings. The new case developed by the
petitioner, placing reliance on the decision referred to
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above that his service ever since his appointment on
daily wages has to be reckoned in calculating the period
of his service and treated as regularised service for the
purpose of extending pensionary benefits to him, even
assuming that he was entitled to such benefits, is
not at all a matter to be considered by this court in
the contempt proceedings. He has no case that the
period of service calculated as his pensionable service as
under Ext.R1(c) issued by the alleged contemnor, the
Chairman and Managing Director of the Corporation in
any way is violative and conflicting with the reckoning
of qualifying service for the purpose of pension in
counting his service on daily wages also as under Clause
3 of Rule extracted in Ext.P11 judgment as directed
in Annexure (I) judgment in the writ petition. When
that be so, we find that the respondent, the
alleged contemnor has complied with the directions
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in Annexure (I) judgment and there is no merit in the present
proceedings to proceed against him for contempt.
In that view of the matter, we dismiss the Contempt
of Court Case.
Sd/-
(P.R.RAMAN)
AG. CHIEF JUSTICE
Sd/-
(S.S.SATHEESACHANDRAN)
JUDGE
SK/-
//true copy//
P.S. to Judge.