Kerala High Court
S.N.Kesavan Namboodiri vs Travancore Devaswom Board
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 12TH DAY OF JANUARY 2017/22ND POUSHA, 1938
WP(C).No. 13846 of 2014 (E)
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PETITIONER:
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S.N.KESAVAN NAMBOODIRI,
RESIDING AT S.N.V. ILLAM, THIRUVANVANDOOR P.O.,
THIRUVALLA-689 109.
BY ADV. SRI.S.KRISHNAMOORTHY
RESPONDENTS:
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1. TRAVANCORE DEVASWOM BOARD,
REP BY ITS SECRETARY, NANDANCODE,
TRIVANDRUM - 695014..
2. THE DEVASWOM COMMISSIONER,
TRAVANCORE DEVASWOM BOARD, NANDANCODE,
TRIVANDRUM-695 003.
3. THE FINANCE & ACCOUNTS OFFICER,
TRAVANCORE DEVASWOM BOARD, NANDANCODE,
TRIVANDRUM-695 003.
4. THE ASSISTANT COMMISSIONER,
TRAVANCORE DEWASWOM BOARD, THIRUVALLA-689 109.
R1-R4 BY SRI.T.K.AJITH KUMAR, SC, TRAVANCORE
DEVASWOM BOARD.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 13846 of 2014 (E)
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APPENDIX
PETITIONER'S EXHIBITS:
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EXT. P1. TRUE COPY OF THE RELEVANT PORTIONS OF THE SERVICE
CONDITIONS, FOR DEVASWOM EMPLOYEES.
EXT.P2. TRUE COPY OF THE REPLY IN COMPLAINT NO. 3112/11
DATED 12-2-13.
EXT. P3. TRUE COPY OF THE TDB REPORT NO. 50 OF 2013.
EXT. P4. TRUE COPY OF THE ORDER IN DBP 56/2013 IN TDB REPORT
NO. 50 OF 2013 DATED 19-2-14.
EXT. P5. TRUE COPY OF REPRESENTATION DATED 21-3-2014.
EXT. P6. TRUE COPY OF THE ORDER DATED 4-4-14.
RESPONDENTS' EXHIBITS: NIL.
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// True Copy //
P.A to Judge.
Anu Sivaraman, J.
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W.P.(C) No.13846 of 2014
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Dated this the 12th day of January, 2017
J U D G M E N T
The prayers in this writ petition are as follows:
i) To issue a writ of certiorari or other appropriate writ, order or direction to call for the records leading to Ext.P6 and to quash the same.
ii) To issue a writ of mandamus or such other appropriate writ, declaring that the petitioner is entitled to get the benefits of gratuity and surrender of earned leave and disburse the same to the petitioner, within a time frame.
2. It is submitted that the petitioner had entered service in the Travancore Devaswom Board as Shanti in August 2003 and resigned from service on 26.08.2011. He seeks the benefit of gratuity as well as earned leave surrender as eligible in terms of WP(C) No.13846/2014 2 Ext.P1 Rules as well as the orders of the Travancore Devaswom Board. By Ext.P3, the learned Ombudsman had considered the claim of the petitioner and had found that as per the Rules relating to temple employees issued by the Devaswom Board, the petitioner would be entitled to proportionate gratuity. It was also observed that no Rule is brought to notice for denying earned leave surrender merely because the petitioner resigned from service. By Ext.P4 judgment dated 19.02.2014 the Board was directed to consider the claim of the petitioner for gratuity and earned leave surrender.
3. However, by Ext.P6 order dated 04.04.2014, the claim of the petitioner was rejected by the Board. It is stated in paragraph 2 of Ext.P6 that the Accounts Officer had reported that the petitioner is not entitled to gratuity and other pensionary benefits on the strength of the Rules in force. However, the Rules specifically taken note of by the learned Ombudsman have WP(C) No.13846/2014 3 not even been referred to in Ext.P6.
4. Heard the learned counsel for the petitioner and the learned Standing Counsel for the 1st respondent.
5. It is submitted by the learned counsel for the petitioner that the entitlement of the petitioner for gratuity as well as earned leave surrender stands confirmed on the basis of Ext.P1 Rules by Ext.P3 report of the learned Ombudsman. In the above view of the matter, it is submitted that the contention taken in Ext.P6 to the effect that the petitioner is not entitled to gratuity on the strength of the Rules in force is vitiated by want of application of mind and is liable to be set aside.
6. A Counter affidavit has been filed on behalf of the 1st respondent contending that resignation from public service entails forfeiture of past service in terms of Rule 29 to Chapter III Part III KSR. It is therefore stated that since the petitioner had resigned from service, he would not be entitled to gratuity or WP(C) No.13846/2014 4 earned leave surrender.
7. I have considered the contentions advanced. The specific contention raised by the petitioner on the strength of service conditions of temple employees which have been framed by the Board themselves, has found acceptance by the learned Ombudsman. The Board, Accounts Officer as well as Assistant Devasom Commissioner were heard before the report was submitted by the learned Ombudsman. It is clear from a consideration of Ext.P1 that the relevant Rules provide for eligibility of an employee to proportionate gratuity even in cases where he resigns from service before completing 20 years of service. This is the claim raised by the petitioner. Though the Board states in Ext.P6 that the Rules in force do not provide for payment of gratuity, no Rule whatsoever has been brought to my notice which disentitles the petitioner to gratuity to which he is entitled in terms of Ext.P1.
WP(C) No.13846/2014 5
8. Further, learned counsel for the petitioner has also produced proceedings of the Board dated 01.07.2011 by which employees who retire from service after 01.07.2011 are held entitled to terminal surrender of earned leave for a maximum period of 150 days at the time of retirement. However, the petitioner is a person who has resigned from service. He has not relied on any provision or Rule on the strength of which an employee who resigns from service would be eligible for the benefit of earned leave surrender. The rejection of the claim of the petitioner for Earned Leave Surrender cannot therefore be faulted.
9. In the above view of the matter, I am of the opinion that Ext.P6 order to the extent it rejects the request made by the petitioner on the ground that Rules do not provide for payment of gratuity is vitiated by want of application of mind and is liable to be set aside.
WP(C) No.13846/2014 6
In the result, Ext.P6 in so far as it rejects the claim for gratuity is set aside. The rejection of the claim for Earned Leave Surrender is upheld. It is directed that the petitioner shall be granted gratuity on the strength of eight years of service rendered by him. Amounts of gratuity shall be calculated and disbursed to the petitioner within a period of three months from the date of receipt of a copy of this judgment.
This writ petition is disposed of accordingly.
Sd/-
Anu Sivaraman, Judge smp