Kerala High Court
Kaloor Chits And Investments Pvt. ... vs District Collector on 28 October, 2016
Author: A.K.Jayasankaran Nambiar
Bench: Shaji P.Chaly, A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 28TH DAYOF OCTOBER 2016/6TH KARTHIKA, 1938
WP(C).No. 14532 of 2016 (N)
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PETITIONER(S):
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KALOOR CHITS AND INVESTMENTS PVT. LIMITED,
PAVAKKULAM BUILDINGS, KALOOR,
NOW HAVING ITS OFFICE AT KATTEZHATH BUILDINGS,
BANK ROAD, KALOOR-682 017,
REPRESENTED BY ITS MANAGING DIRECTOR,
P.B.MOHAN.
BY ADVS.SRI.NAVEEN.T.,
SRI.I.M.MANOJ.
RESPONDENT(S):
--------------------------
1. DISTRICT COLLECTOR,
COLLECTORATE COMPLEX, KAKKANAD,
ERNAKULAM-682 030.
2. DEPUTY COLLECTOR (L.A),
KOCHI METRO RAIL PROJECT, CIVIL STATION,
KAKKANAD-682 030.
BY SR. GOVT. PLEADER SMT.K.R. DEEPA.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 28-10-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 14532 of 2016 (N)
APPENDIX
PETITIONER'S EXHIBITS:-
P1 TRUE COPY OF NOTICE ISSUED TO THE PETITIONER BY
2ND RESPONDENT
P2 THE TRUE COPY OF THE MINUTES OF PROCEEDINGS
DT.23/09/2015 BEFORE THE 2ND RESPONDENT.
P3 THE TRUE COPY OF REPRESENTATION GIVEN TO THE
FIRST RESPONDENT.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
SHAJI P. CHALY, J.
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W.P.(C). No.14532 of 2016
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Dated this the 28th day of October, 2016
JUDGMENT
Petitioner is a company registered under the Indian
Companies Act. The premises in which the petitioner
company was functioning for the last 20 years was acquired
for Kochi Metro Rail project. Thereupon, petitioner
approached the respondents for getting compensation
eligible for the tenants in the building acquired. In order to
consider the claim of the petitioner by the appropriate
Redressal Grievance Committee, a meeting was convened in
the office of the District Collector on 23.9.2015 at 11'O
clock. Contention of the petitioner is that, the said notice
was received by the petitioner only on 28.9.2015.
Therefore, petitioner could not put forth the grievance and
immediately on receipt of the notice, Ext.P3 representation
was submitted, which is pending consideration on and w.e.f.
29.10.2015. Non-consideration of the same is the grievance
voiced by the petitioner in this writ petition.
W.P.(C). No.14532 of 2016 2
2. Having heard learned counsel for petitioner, learned
Senior Government Pleader and perusing the documents on
record and the pleadings put forth, I am of the considered
opinion that, since the notice convening the meeting to
redress the grievance of the tenants was received by the
petitioner after the date of the meeting, it is only
appropriate that, a hearing is provided to the petitioner in
accordance with law.
3. Therefore, there will be a direction to the 1st
respondent to take on board Ext.P3 representation
submitted by the petitioner and take a decision on the same,
in accordance with law, after issuing notice to the petitioner
and any other interested or affected persons within two
months from the date of receipt of a copy of this judgment.
Writ petition is disposed of accordingly.
Sd/-
SHAJI P. CHALY
JUDGE
smv
28.10.2016
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
THURSDAY, THE 27TH DAY OF OCTOBER 2016/5TH KARTHIKA, 1938
WP(C).No. 14782 of 2015 (W)
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PETITIONER(S):
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DR.P.P.JAGEER, AGED 58 YEARS,
S/O. PRABAKARAN P. H., ASSOCIATE PROFESSOR, (RETIRED)
PALISSERY HOUSE, AISWARYA NAGAR, PALLAMTHURUTHU ROAD,
N. PARUR-683513
REPRESENTED THROUGH POWER OF ATTORNEY DR. SULEKHA W/O. DR.P.P.JAGEER
BY ADVS.SRI.JOHN JOSEPH(ROY)
SRI.MOBIN JACOB
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT OF
KERALA, HIGHER EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM 695001
2. THE DIRECTOR OF COLLEGIATE EDUCATION
VIKAS BHAVAN, THIRUVANANTHAPURAM 695001
3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION
MAHARAJAS COLLEGE COMPOUND, ERNAKULAM KOCHI-11
4. THE PRINCIPAL
S.N. M. COLLEGE MALIANKARA, ERNAKULAM DISTRICT,
PIN-683516
5. THE MANAGER, SNM COLLEGE
MALIANKARA, ERNAKULAM DISTRICT, PIN-683516
R1-R3 BY ADV. SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL
R5 BY ADV. SRI.K.B.GANGESH
BY GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
27-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 14782 of 2015 (W)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: TRUE COPY OF THE ORDER NO. GO(R)
NO.1627/06/H.EDN. DATED 28.10.2006 GRANTING PERMISSION OF LWA
EXHIBIT P2: TREU COPY OF THE JUDGMENT OF THIS HON'BLE
COURT IN CRP NO.508 OF 2009 DATED 21.2.2013
EXHIBIT P3: TRUE COPY OF THE REPLY DATED 27.5.2013
ISSUED BY THE 2ND RESPONDENT TO 4TH RESPONDENT
EXHIBIT P4: TRUE COPY OF THE JUDGMENT OF THIS
HONOURABLE IN COURT WPC NO. 22991 OF 2013 DATED 18.12.2014
EXHIBIT P5: TRUE COPY OF THE ORDER NO.M1/34661/2013 /
H.EDN. DEPT. DATED 10.4.2015 TO THE 3RD RESPONDENT
EXHIBIT P6: TRUE COPY OF THE ORDER NO.920/2015/H.EDN.,
DEPT. DATED 4.5.2015 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P7: NIL
EXHIBIT P8: NIL
EXHIBIT P9:TRUE COPY OF THE GRATUITY PAYMENT ORDER
ISSUED BY THE ACCOUNTS OFFICER DATED 16.11.2015
EXHIBIT P10: TRUE COPY OF THE COMMUNICATION PAYMENT
ORDER ISSUED BY THE ACCOUNTS OFFICER DATED 16.11.2015
EXHIBIT P11: TRUE COPY OF THE VERIFICATION REPORT
ISSUED BY THE ACCOUNTANT GENERAL OFFICER DATED 16.11.2015
EXHIBIT P12: NIL
EXHIBIT P13: TRUE COPY OF THE LETTER DATED 14.03.2013
ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT.
EXHIBIT P14: TRUE COPY OF THE LETTER DATED 02.04.2013
ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT.
EXHIBIT P15: TRUE COPY OF THE LETTER DATED 10.06.2013
ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT.
EXHIBIT P16: TRUE COPY OF THE LETTER DATED 15.01.2016
ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT.
EXHIBIT P17: TRUE COPY OF THE LETTER DATED 28.06.2016
ISSUED BY THE 3RD RESPONDENT.
RESPONDENT(S)' EXHIBITS
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EXT.R5(a): TRUE COPY OF THE PASSPORT NO.B2782723 OF THE PETITIONER
PRODUCED AS EXT.P11 IN W.P.(C).22991/2013
EXT.R5(b): TRUE COPY OF TRANSLATION OF PAGE NO.23 OF PASSPORT
NO.2782723 OF THE PETITIONER.
EXT.R5(c): TRUE COPY OF TRANSLATION OF PAGE NO.26 OF PASSPORT
NO.2782723 OF THE PETITIONER PRODUCED AS EXT.P11(b) IN WP(C)
22991/2013
EXT.R5(d): TRUE COPY OF PASSPORT NO.Z1599887 OF THE PETITIONER
PRODUCED AS EXT.P12 IN WP(C) 22991/2013.
//TRUE COPY//
P.A.TO JUDGE
sm
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C) No.14782 of 2015
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Dated this the 27th day of October, 2016
JUDGMENT
The petitioner, who is a retired Associate Professor in English, while working as Associate Professor in the 4th respondent college, had applied for Leave Without Allowance, for a period of 4 years, for the purpose of taking up an employment abroad. The application submitted by the petitioner was, however, not forwarded to the Government by the 5th respondent Educational Agency. This led the petitioner to approach this Court through W.P.(C).2006/2006, where an interim order was passed, directing the 4th respondent to forward the application submitted by the petitioner to the Government, for the purposes of obtaining concurrence of the Government, as the petitioner was proposing to proceed on leave in excess of four months. The said Writ petition was later disposed with a direction to the petitioner to prefer a fresh application before the 4th respondent for forwarding to the Government. It would appear that, thereafter, a fresh application was preferred by the petitioner on 04.03.2006, and the same was forwarded to the Government by the 4th respondent. The Government, by Ext.P1 order, accorded concurrence to the W.P.(c).No. 14782 of 2015 : 2 : petitioner to avail Leave Without Allowance for accepting a foreign assignment, subject to the condition that the petitioner executed an indemnity bond in the prescribed format undertaking to repay the monetary liability, if any that may be incurred by the management. It would appear that pursuant to Ext.P1 Government Order, the petitioner executed an indemnity bond in the prescribed format with the Government. The bond was executed pursuant to an interim order that was passed in W.P.(C).No.8788/2006. Although the 5th respondent challenged the said interim order in a writ appeal , the said writ appeal was disposed without interfering with the interim order passed, but clarifying that the issue regarding the payments to be made to substitute Teachers appointed by the management, could be resolved at the time of disposal of the writ petition itself. The writ petition however was later dismissed as not pressed, by the judgment dated 07.11.2006, since the petitioner herein was not interested in pursuing the matter, having obtained the necessary reliefs through the interim order passed in the writ petition.
2. After executing the bond with the Government, the petitioner left the country on 01.11.2006. The 5th respondent, finding that the petitioner had actually left the country without awaiting a formal sanction of the leave by the 5th respondent, issued a memo dated W.P.(c).No. 14782 of 2015 : 3 : 15.11.2006 to the petitioner proposing to take disciplinary action against him, for un-authorised absence as also for the reason that the petitioner had not executed a bond with the management as contemplated in Ext.P1 Government order. Since the petitioner had already left the country by the time, the petitioner did not participate directly in the domestic enquiry, but was represented through a power of attorney holder. The domestic enquiry culminated in an enquiry report dated 10.04.2008 being drawn up, wherein the enquiry Officer found that the charges alleged against the petitioner stood proved. Thereafter, the 5th respondent disciplinary authority, accepted the enquiry report, and after issuing the necessary show cause notice, imposed punishment of removal from service on the petitioner, by an order dated 18.06.2008, with effect from 01.11.2006. The petitioner challenged the said order of the 5th respondent in an appeal preferred before the University Appellate Tribunal. The appeal, however, was dismissed by the said Tribunal. In CRP No.508/2009, that was preferred by the petitioner against the order of the University Appellate Tribunal, a Division Bench of this Court by Ext.P2 judgment found that, the impugned order of the 5th respondent, removing the petitioner from service, could not be legally sustained. The Court, therefore, directed a reinstatement of the petitioner in service forthwith, subject to the following conditions: W.P.(c).No. 14782 of 2015 : 4 :
a) The service benefits of the revision petitioner shall be granted subject to the provisions of G.O(MS) No.6/85/GAD dated 3rd January, 1985.
b) The revision petitioner shall pay a sum of Rs.99,828/- together with simple interest at the rate of 10% per annum to the first respondent on or before 15.3.2013. The interest shall be calculated from the date of respective payments to the person appointed as substitute by the 1st respondent during the absence of the petitioner on account of his leave.
c) The petitioner shall pay a sum of Rs.10,000/- to the first respondent towards costs through the counsel appearing before this Court on or before 15.3.2013.
d) For facilitating the payment, the first respondent shall forward, within a week from today, a calculation statement to the petitioner showing the amount paid to the substitutes during the absence of the petitioner, the date of such payments and the interest calculated thereon.
e) It is hereby made clear that the petitioner shall get the benefit of this order only if he makes the payment as aforesaid.
W.P.(c).No. 14782 of 2015 : 5 :
3. It is the submission of the learned counsel for the petitioner that, pursuant to Ext.P2 judgment, the petitioner paid the amount of Rs.99,828/- together with simple interest @ 10% per annum to the 5th respondent, within the time stipulated in the judgment. The petitioner further paid a sum of Rs.10,000/- to the 5th respondent towards costs, as directed in the said judgment. Thereafter, although the petitioner was reinstated in service with effect from 11.03.2013, he was not granted the service benefits pertaining to the period between 01.11.2010, which marked the expiry of the leave period, and 10.03.2013, when he was reinstated in service pursuant to Ext.P2 judgment. This led the petitioner to approach this Court through W.P. (C).No.22991/2013, seeking a direction to the Government to process the pension proposal of the petitioner and to disburse pensionary benefits and other service benefits, together with interest thereon to the petitioner, expeditiously. By Ext.P4 judgment, this Court directed the Director of Collegiate Education, to process the pension papers of the petitioner and grant the pension and service benefits to the petitioner, within a period of two months from the date of receipt of the service book of the petitioner. Thereafter, Ext.P6 order dated 04.05.2015 came to be passed by the 1st respondent. In Ext.P6 order, while processing the request of the petitioner for the purposes of pensionary benefits, it was found that, the period from 01.11.2006 to W.P.(c).No. 14782 of 2015 : 6 : 10.03.2013, inclusive of the leave period availed by the petitioner, would have to be treated as 'non-duty' period, for the purposes of processing the pension claims of the petitioner. In the writ petition, the petitioner impugns Ext.P6 order, to the extent it treats even the period from 1.11.2010 to 10.03.2013 as 'non-duty' period, on the contention that during the said period, the petitioner was entitled to get the benefit of Ext.P2 judgment, which granted him the service benefits that flowed from the reinstatement, that was ordered in the said judgment.
4. A counter affidavit has been filed by the 2nd respondent, where, Ext.P6 order is sought to be justified, on the reasons stated therein. It is further stated that, it was by taking a lenient view that the Government was pleased to regularise the un-authorised period as 'non-duty', in relation to the petitioner, without forfeiting the retirement benefits. In the counter affidavit filed by the 5th respondent, the apprehension of the 5th respondent is only with regard to the possible upsetting of promotions that have already been granted in the college, during the leave period sanctioned to the petitioner. It is further contended by the learned counsel for the 5th respondent that, even if the petitioner is held entitled to the service benefits for the said period by an application of Rule 56A (3) of Part I W.P.(c).No. 14782 of 2015 : 7 : KSR, the said payment should be subject to the provisions of 56A (5) of Part I KSR and the petitioner would not be entitled to any amount by way of service benefits as is equal to the amounts received by him through any alternate employment, which he was engaged in, during the relevant period. Reference is made to paragraph 18 of the counter affidavit, which states as a follows:
'18. The petitioner cannot claim service benefits from 1.11.2010 to 10.3.2013 also for the reason that he was not available in station to rejoin duty upon expiry of this original period of leave on 31.10.2010. Petitioner availed leave for employment abroad. Even at the time of expiry of leave, the petitioner was abroad. He had produced his passport details in WP(C) No.22991/2013 as Exts.P11, P11(a), P11(b) and P12. True copy of passport No. B2782723 of the petitioner produced as Ext.P11 in WP (C) No.22991/2013 is produced herewith and may be marked as Exhibit R5(a). True copy of translation of page No. 23 of passport No. 2782723 of the petitioner produced as Ext.P11(a) in WP(C) No.22991/2013 is produced herewith and may be marked as Exhibit R5(b).
True copy of translation of page No.26 of passport No. 2782723 of the petitioner produced as Ext.P11(b) in WP (C) No.22991/2013 is produced herewith and may be marked as Exhibit R5(c). True copy of passport No.Z1599887 of the petitioner produced as Ext.P12 in W.P.(c).No. 14782 of 2015 : 8 : WP(C) No.22991/2013 is produced herewith and may be marked as Exhibit R5(d). A perusal fo the aforesaid documents would make it abundantly clear that the petitioner had no interest to rejoin duty as he was employed abroad. He came back long after expiry of his original leave without allowance. Even now, the petitioner is employed abroad and the Writ Petition is filed through his power of attorney holder. For these reasons also, the petitioner is not entitled to claim the benefit of Rule 56A (3) of Part I KSR'.
5. I have heard the learned counsel for the petitioner, the learned Government Pleader for respondents 1 to 3 and the learned counsel for respondents 4 and 5.
6. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that, the issue as to whether the petitioner was entitled to proceed on Leave Without Allowance for the period 01.11.2006 to 31.10.2010 has already engaged the attention of this Court, and by Ext.P2 judgment in CRP.No.508/2009, which was preferred against the order of the University Appellate Tribunal, affirming the order of the 5th respondent imposing a punishment of removal from service on the W.P.(c).No. 14782 of 2015 : 9 : petitioner for unauthorised absence during the aforesaid leave period, this Court had specifically found that the order of removal from service could not be legally sustained, and directed a reinstatement of the petitioner in service forthwith. Consequent to Ext.P2 judgment, and on the petitioner making the payments, that were directed to be made to the 5th respondent, the petitioner rejoined service on 10.03.2013 and continued in service till the date of superannuation, namely, 31.03.2013. In Ext.P2 judgment, there is a clear finding that the petitioner would stand entitled to the service benefits consequent to his reinstatement, subject to the provisions of G.O.MS.6/85/GAD, dated 03.01.1985, which deal with the pay and allowances to which the petitioner would not be entitled during the leave period. The claim of the petitioner in this writ petition is only for the service benefits for the period from 01.11.2010 to 0.03.2013. In the light of the specific finding in Ext.P2 judgment that enables the petitioner to claim the service benefits consequent to a reinstatement, I am of the view that the entitlement of the petitioner for the service benefits for the period from 01.11.2010 to 10.03.2013, would have to be in terms of Rule 56A Part I KSR and in particular, Rule 56A(3) r/w Rule 56A (5). Accordingly, I quash Ext.P6 order, to the extent it indicates that the aforesaid period will be treated as 'non-duty' period, and direct the State Government to pass a fresh order in lieu of Ext.P6, taking W.P.(c).No. 14782 of 2015 : 10 : note of the directions in this judgment and regularising the period between 01.11.2010 and 10.03.2013 as 'duty' period of the petitioner. The state Government shall pass fresh orders within a period of one month from the date of receipt of a copy of this judgment. I also direct the 4th respondent to take necessary steps to forward the pension proposals in respect of the petitioner to the Deputy Director, Collegiate Education, within a period of one month of the order passed by the State Government as directed above, and on receipt of the same, the Director of Collegiate Education shall pass orders processing the pension papers and claim for other service benefits of the petitioner,within a further period of two months. I make it clear that, the service benefits, that the petitioner is held entitled to in this judgment shall be only the monetary benefits and nothing else.
The writ petition is disposed as above.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE sm/