IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24654 of 2008(I)
1. MOHAMMED MUNEER, (RETIRED
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE COMMISSIONER, LAND REVENUE,
For Petitioner :SRI.K.D.BABU
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :16/09/2009
O R D E R
ANTONY DOMINIC, J.
================
W.P.(C) NO. 24654 OF 2008 (I)
=====================
Dated this the 16th day of September, 2009
J U D G M E N T
The petitioner joined as Lower Division Clerk in the Revenue
Department on 6/8/1969.
2. On an application made in terms of the rules then
prevailing, he was granted leave without allowances for taking
employment abroad for 15 years from 26/3/1979. On expiry of
the leave, petitioner ought to have rejoined on 25/3/1994.
According to him, he applied for extension of leave, but however,
though it was rejected, the decision was not informed to him. Be
that as it may, petitioner remained on unauthorised absence and
disciplinary proceedings were initiated. Memo of charges were
issued on 28/12/95 and written statement was filed by the
petitioner on 30th of December, 1995 itself.
3. While so, by Ext.P1, District Collector allowed the
petitioner to rejoin duty subject to the concurrence of the Board of
Revenue. Accordingly, the petitioner joined duty on 13/3/96 and
retired from service as per Ext.P2 order w.e.f. 30/6/96. Board of
Revenue did not concur with the step taken by the District
WPC 24654/08
:2 :
Collector, as a result thereof, disciplinary action continued. It is
stated that by order dated 7/12/96, he was informed of the
provisional decision taken by the authorities to terminate his
services. That order was confirmed as per Ext.P3 dated
5/12/2000.
4. Ext.P3 order was challenged in OP NO.16513/01, which
was disposed of directing to consider his representation against
Ext.P3 and also his request for minimum pension. That was
rejected by Ext.P4 order, which again was challenged in WP(C)
NO.2624/02. The writ petition was dismissed and thereupon the
petitioner filed WA NO.273/05. Writ appeal was disposed of as per
Ext.P5 judgment. A reading of Ext.P5 judgment shows that
although validity of termination was one of the issues in dispute,
petitioner confined his prayer for minimum pension for the
services rendered by him during the period 6/8/69 to 26/3/1979.
The Division Bench finally directed that though the services
rendered by the petitioner was for less than 10 years, still his
services could be reckoned as 10 years service for pensionary
benefits in terms of Rule 57 of Part III KSR. On this basis,
petitioner was allowed to make a representation to the 2nd
WPC 24654/08
:3 :
respondent and the 2nd respondent was directed to consider the
same.
5. Accordingly, representation was made and that was
considered and rejected by the 2nd respondent as per Ext.P6. In
Ext.P6, it is stated that since the service of the petitioner was
terminated and therefore, he is not eligible for pension in terms of
Rule 5(a) of Part III KSR. It is challenging Ext.P6, the writ petition
is filed.
6. Although argument was addressed against the validity
of Ext.P3 order terminating the service of the petitioner, I am not
inclined to consider the same for the reason that a reading of
judgment in WA No.273/05 shows that though validity of
termination was one of the issues raised in that case, the
contentions were given up and the petitioner confined his prayer
only to grant of pension. Thus, the contentions against Ext.P3
having been given up on an earlier occasion, the petitioner cannot
now be allowed to re agitate the same in a subsequent
proceedings.
7. Then the only issue that arises for consideration is the
validity of Ext.P6. Rule 5(a) Part III KSR provides that no pension
WPC 24654/08
:4 :
may be granted to an employee dismissed or removed for
misconduct. Therefore, if the case of the petitioner is accepted as
one of dismissal for a misconduct, he is ineligible for pension in
terms of the aforesaid rule. However, counsel contends that even
in Ext.P3 order of punishment, he was shown to have been
‘terminated’ from service and not ‘dismissed’ from service. It is
contended that termination is not a punishment even, and
therefore, the said termination cannot deprive the petitioner
atleast the minimum pension, which he is eligible for.
8. True, as contended by the counsel for the petitioner,
the word used in Ext.P3 is termination. However, fact remains that
the petitioner was proceeded against in a disciplinary proceedings
for a misconduct that he committed. It was in such proceedings
that punishment was imposed resulting in premature cessation
of employment, which in my view, is nothing less than dismissal
from service, although the word used is termination. That apart
even if this contention affecting the validity of Ext.P3 was
available to the petitioner that ought to have been urged by the
petitioner atleast when this Court considered WA NO.273/05.
9. Therefore, in effect and for all purposes, the
WPC 24654/08
:5 :
termination effected by Ext.P3 is nothing less than dismissal and
if that be so Rule 5(a) of Part III KSR applies to his case rendering
him ineligible for pension. I am not in a position to take a view
different from what is taken by the 2nd respondent in Ext.P6.
Writ petition fails and is dismissed.
ANTONY DOMINIC, JUDGE
Rp