Kerala High Court
T.V.Hamzakoya vs State Of Kerala Represented By Its on 25 January, 2011
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30488 of 2008(D)
1. T.V.HAMZAKOYA, (RETIRED), DISTRICT
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY ITS
... Respondent
2. KERALA STATE CO-OPERATIVE FEDERATION FOR
3. GENERALA MANAGER,
For Petitioner :DR.GEORGE ABRAHAM
For Respondent :SRI.P.K.VIJAYA MOHANAN, SC, MATSYAFED
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :25/01/2011
O R D E R
S. Siri Jagan, J.
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W.P(C) No. 30488 of 2008
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Dated this, the 25th day of January, 2011.
J U D G M E N T
The petitioner is a retired employee of the 2nd respondent (popularly known as Matsyafed). He approached this Court seeking certain service benefits by filing W.P(C) No. 36521/2003, in which, by Ext. P5 judgment dated 20.3.2006, this Court directed to grant the petitioner 5 advance increments with effect from 5.7.1980 on his first absorption to the Kerala Fishermen's Welfare Corporation. Pursuant to the same, the 2nd respondent passed Ext. P6 order dated 24.2.2007. A contempt case was filed alleging non-compliance with Ext. P5, in which this Court held that there is substantial compliance, but reserved liberty to the petitioner to challenge Ext. P6 appropriately. It appears that the petitioner did not challenge Ext. P6 but continued to represent before the Matsyafed, who appears to have issued further orders and ultimately Ext. P13 order dated 30.12.2008. The petitioner has filed this writ petition seeking the following reliefs:
"i) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respondent to grant the benefit of five advance increments to the petitioner with effect from 5.7.1980, the date of his first absorption into the Kerala Fishermen's Welfare Corporation;
ii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to finalise the benefits flowing out of Ext. P5 judgment to the petitioner within a time frame;
iii) issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to grant the grade and scale of pay in the category of District Officer with effect from 7.7.1991 to the petitioner.
iv) issue such other reliefs as this Hon'ble Court shall deem just and proper in the circumstances of the case.W.P(C) No. 30488/08. -: 2 :-
v) issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext. P13 order to the extent it denies an amount of Rs.1,70,561 to the petitioner;
vi) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to disburse to the petitioner the balance DCRG covered as per Ext. P12."
2. The petitioner's contention is that the directions in Ext. P5 judgment have not been complied with. It is submitted that although Ext. P6 order has been passed purportedly pursuant to Ext. P5 judgment, the same is only part compliance and purportedly in full compliance, by Ext. P13 the petitioner was given some more benefits, which also is not in accordance with Ext. P5 judgment.
3. Two counter affidavits have been filed by respondents 2 and 3. They take the contention that they had fully complied with Ext. P5 judgment, which compliance has been endorsed by this Court by the judgment in Cont. Case (C) No. 1039/2008. Therefore, the petitioner is not entitled to any further reliefs on the basis of Ext. P5 judgment, especially when the petitioner has not challenged Ext. P6, despite liberty having been reserved for the same in the order disposing of the Contempt Case, is their contention.
4. I have considered the rival contentions in detail.
5. As admitted by the learned counsel for the petitioner himself, what the petitioner seeks is compliance with Ext. P5 judgment. The operative portion of Ext. P5 judgment reads thus:
"The result will be that the petitioner is entitled for relief No. (iii). There will be a direction to the 2nd respondent to grant the petitioner five advance increments W.P(C) No. 30488/08. -: 3 :- with effect from 5.7.1980 on his first absorption to the Kerala Fishermen's Welfare Corporation. The Matsyafed will entertain a representation to be submitted by the petitioner regarding preservation of pay parity between the petitioner and Sri. Santhamohan. If the Matsyafed receives such a representation within one month of the petitioner receiving a copy of this judgment, they will consider that representation and pass appropriate orders bestowing as much sympathy as the same deserves. Before taking a decision on the respondent, the Matsyafed shall hear the petitioner."
Admittedly, Ext. P6 order has been passed by the Matsyafed, in which a calculation is given, wherein, 5 additional increments at the rate of Rs. 50/- have been added to his salary for fixation of pay and based on the same, subsequent pay revisions also is stated to have been given effect to. Contending that Ext. P6 is not proper compliance, the petitioner had filed Cont. Case (C) No. 1039/2008, in which, the learned Judge, who passed Ext. P5 judgment, held as follows:
"Annexure R1(a) produced along with the affidavit submitted by the respondent will reveal that there has been substantial compliance of the directions in Annexure F judgment. If the petitioner is having any grievance, it will be open to him to initiate independent proceedings against Annexure R1(a)."
Admittedly, the petitioner has not challenged Annexure R1(a), which is Ext. P6 produced by him. As such, I do not think that the petitioner can now be heard to contend that Ext. P5 judgment has not been complied with. The petitioner's contention is that the respondents themselves were aware of the fact that Ext. P5 judgment has not been fully complied with and that is why they passed further orders and ultimately Ext. P13 order, in which some further relief flowing from Ext. P5 W.P(C) No. 30488/08. -: 4 :- judgment has been given, which itself is not in full compliance.
6. I am unable to subscribe to that view. After having suffered Annexure R2(b) order in the contempt case, without challenging Annexure R1(a) mentioned therein, I do not think that the petitioner can taken the stand that Ext. P5 judgment has not been complied with. Even if by Ext. P13 any further relief was granted to the petitioner, that can only be treated as a concession and not a right.
In the above circumstances, the petitioner cannot now seek any further relief based on Ext. P5 judgment. The writ petition is therefore liable to be dismissed. Accordingly, the same is dismissed.
Sd/- S. Siri Jagan, Judge.
Tds/