Mohamed Elachola vs Kerala State Road Trnasport ...
2022 Latest Caselaw 11211 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

         THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

  FRIDAY, THE 2ND DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944

                   WP(C) NO. 33312 OF 2015

PETITIONES:

          MOHAMED ELACHOLA
          AGED 60 YEARS,(GUARD, KSRTC,
          MALAPPURAM, RETIRED ON 09.09.2009),
          ALIKUNDIL HOUSE, KOOTTILANGADI P.O.,
          MALAPPURAM DISTRICT, PIN - 676 506.

          BY ADV SRI.K.P.RAJEEVAN

RESPONDENTS:

    1     KERALA STATE ROAD TRANSPORT CORPORATION
          REPRESENTED BY ITS MANAGING DIRECTOR,
          TRANSPORT BHAVAN, FORT,
          THIRUVANANTHAPURAM, PIN - 695 023.

    2     THE DISTRICT TRANSPORT OFFICER
          KSRTC, MALAPPURAM DEPOT.,
          MALAPPURAM, PIN - 676 505.

          BY ADV.
          SRI. DEEPU THANKAN, SC, KSRTC
          SRI.T.P.SAJAN


     THIS WRIT PETITION       (CIVIL) HAVING COME UP         FOR
ADMISSION ON 02.12.2022,      THE COURT ON THE SAME          DAY
DELIVERED THE FOLLOWING:
    W.P(C).33312/2015
                                       2




                              JUDGMENT

Dated this the 2nd day of December, 2022

This writ petition is filed by the petitioner seeking the following

reliefs:

"i) Call for the records leading to this case and issue a writ of certiorari quashing Exhibit P4.

ii) Issue a writ of mandamus directing the respondents to sanction and disburse the pensionary benefits including provident fund, staff welfare fund, arrears of salary, gratuity, arrears of pay revision etc. to the petitioner with interest immediately."

2. Even according to the petitioner, petitioner could not

complete 10 years service, making him eligible for pension from

the Kerala State Road Transport Corporation.

3. A detailed counter affidavit is filed by the K.S.R.T.C.

stating as follows:

3.1. The petitioner was appointed as Guard II in the service

of the corporation on 26-11-2003. During the service, it is

observed that the petitioner is a habitual drunkard and reported

that he uses liquor even on duty time. While the petitioner was W.P(C).33312/2015

working at Nilambur Depot on 9-6-2008 since it was found that

he was under intoxication, the station master in charge did not

allow him to join duty. Thereupon, the petitioner intentionally

urinated and discharged excreta in the office of the station

master causing nuisance to the travelling public and the officials

of K.S.R.T.C. On 10-6-2008, he repeated the same in a bus.

Pursuant to the above misconduct disgraceful action, the

petitioner was suspended from service. He was issued with a

charge memo on 8-7-2008. He submitted his explanation which

was considered by the authority and having found not

satisfactory, a detailed enquiry was conducted by appointing an

enquiry officer. After conducting the enquiry, the enquiry officer

found the petitioner guilty. Thereupon, a show cause notice was

issued to the petitioner on 25-4-2009 calling for his explanation

against the proposed punishment of removal from service. The

petitioner filed a reply to the show cause notice. After due

consideration of the said reply the explanation was found

unsatisfactory, but the disciplinary authority taking a lenient view

reduced the proposed punishment and awarded punishment of

compulsory retirement from the service of the corporation W.P(C).33312/2015

treating the period of suspension as eligible leave as per Order

No. VLC 4/015177/08 dated 29-8-2009. Exhibit.R1(a) is the copy

of the said order issued by the Executive Director (Vigilance).

3.2. It is also stated in the counter affidavit that the

petitioner submitted a statutory appeal before the appellate

authority praying for reduction of his punishment and reinstating

him in the service of the Corporation. The appellate authority

considering the appeal set aside the punishment of compulsory

retirement from service and awarded a punishment of temporary

bar of increment for one year with a condition that he should not

be reinstated in Nilambur unit of the K.S.R.T.C. and the period in

which he was ousted from the service consequent to punishment

of disciplinary authority was treated as eligible leave as per

Order D.Dis.2871/09/APL dated 25-9-2010. Exhibit.R1(b) is the

copy of the said Order dated 25-9-2010.

3.3. It is further stated in the counter affidavit that in spite

of the reinstatement by Ext.R1 (b), the petitioner did not rejoin

the service of the corporation till 31-3-2011, ie., the date of his

retirement. As he failed to rejoin in the service of the corporation

on 29-5-2010 his period of service from 25-9-2010 to 31-3-201l W.P(C).33312/2015

could not be considered as service for the purpose of pension

and other benefits. He entered into service on 26-11-2003. He

was suspended on 8-7-2008. Even though his period of

Suspension was regularised as eligible leave and he was ordered

to be reinstated into service on 29-5-2010 he did not join duty till

his date of retirement. So the period which can be reckoned for

pension is only 5 years 9 months and 9 days. The petitioner does

not have the required qualifying service for statutory pension.

3.4. Ex-gratia pension is granted to persons who do not

have minimum qualifying service ie., 10 years. But in case of

employees who avail LWA including those sanctioned under

Appendix XII (c) KSR will not be eligible for ex-gratia pension. In

the instant case the unauthorised absence of the petitioner from

25-9-2010 to 31-3-2011 can be regularised only as LWA and hence

he is not eligible for ex-gratia pension also.

3.5. It is also contended that that the averment of the

petitioner that because of illness he could not rejoin duty is not

correct. As per the direction of this Honourable Court in Ext.P3

judgment, the eligibility of the petitioner for pension and other

retirement benefits was considered by the corporation and W.P(C).33312/2015

Ext.P4 memo was issued rejecting his claim for service pension

and other pensionary benefits. There is no illegality or procedural

lapse on the part of the Corporation in the case of the petitioner.

Ext.P4 is issued after considering the facts of the case and hence

the prayer of the petitioner for quashing Ext.P4 and grant of

terminal benefits is only liable to be rejected.

4. Therefore, on a reading of the counter affidavit, it is

clear that petitioner has only 5 years 9 months and 9 days service

and the sum and substance of the contention is that petitioner is

not eligible for pension.

5. In that view of the matter, I do not think that the

petitioner is entitled to get any reliefs as are sought for, on the

basis of the rules prevailing then for granting pension.

However, I understand that later, the State Government has

issued orders even granting ex-gratia pension and family pension

to the employees, who have worked even up to 3 years. It is for

the petitioner to explore the possibility of securing any pension

on the basis of the said order issued by the Government. In that

view of the matter, I am of the opinion that writ petition can be

disposed of with appropriate directions.

W.P(C).33312/2015

6. Having heard learned counsel for the petitioner Sri.K.P.

Rajeevan and Sri. Deepu Thankan, learned Standing Counsel for

the K.S.R.T.C. and perusing the pleadings and material on record,

the petitioner is permitted to submit a fresh representation on

the basis of the notification issued by the Government granting

ex-gratia pension to Government Employees along with family

pension, even for employees who have a service period of three

years, if it is applicable to the employees of K.S.R.T.C.

Therefore, Writ petition is disposed of leaving open the

liberty of the petitioner to submit representation accordingly,

before the Managing Director of K.S.R.T.C, within one month,

which shall be considered by the Managing Director of K.S.R.T.C.,

within a further period of one month. Learned counsel for the

petitioner also submitted that since the petitioner is laid up no

opportunity for hearing is required.

Sd/-

Shaji P. Chaly, Judge sou.

W.P(C).33312/2015

APPENDIX OF WP(C) 33312/2015

PETITIONER EXHIBITS

EXHIBIT P1 A TRUE COPY OF FREE PASS ISSUED TO THE PETITIONER.

EXHIBIT P2 A TRUE COPY OF REPRESENTATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 04.03.2015.

EXHIBIT P3                A TRUE COPY OF JUDGMENT DATED
                          26.06.2015 IN WP(C) NO.19250 OF 2015.

EXHIBIT P4                A TRUE COPY OF MEMORANDUM DATED
                          28.09.2015 ISSUED BY THE 1ST
                          RESPONDENT.


RESPONDENT EXHIBITS

EXHIBIT R1                TRUE COPY OF ORDER VLC 4/015177/08
                          DATED 29.08.2009 OF THE EXECUTIVE
                          DIRECTOR (VIGILANCE)

EXHIBIT R1                TRUE COPY OF ORDER
                          NO.D.DIS.2871/09/APL DATED 25.9.2010.