Kerala High Court
K.K.Chandran vs Union Of India on 1 October, 2009
Bench: S.R.Bannurmath, A.K.Basheer
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1429 of 2008()
1. K.K.CHANDRAN,
... Petitioner
Vs
1. UNION OF INDIA, REPRESENTED BY
... Respondent
2. COCHIN SHIPYARD LTD.,
For Petitioner :SRI.M.V.BOSE
For Respondent :SRI.M.R.JAYAPRASAD, CGC
The Hon'ble the Chief Justice MR.S.R.BANNURMATH
The Hon'ble MR. Justice A.K.BASHEER
Dated :01/10/2009
O R D E R
S.R. Bannurmath, C.J. & A.K. Basheer, J.
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W.A.No. 1429 OF 2008
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Dated this the 1st day of October, 2009
JUDGMENT
Basheer, J.
This appeal is at the instance of a former employee of M/s.Cochin Shipyard Ltd., who retired from service under the Voluntary Retirement Scheme(VRS) in April 1992.
2. In the year 2005, the appellant approached this Court under Article 226 of the Constitution of India praying for the following reliefs:
"i. to call for the entire records leading up to Ext.P12 and to quash the same by the issuance of a writ of certiorari or any other writ, direction or order;
ii. to issue a writ of mandamus compelling the respondents to re-fix the basic pay of the petitioner as on 22.3.1971 at Rs.430/- protecting the last pay drawn by him in GREF and treating the petitioner as permanent employee of GREF;
iii. to direct the respondents to disburse the entire arrears to the petitioner on the basis of re-fixation of pay."
3. The claim made by the appellant was resisted by his employer contending, inter alia, that the appellant was under
serious misconception about the nature of his appointment in the WA No.1429 of 2008 -:2:- Cochin Shipyard and also that the Writ Petition filed after a lapse of more than 13 years of his retirement availing of the benefit under the VRS was wholly unsustainable.
4. The learned Single Judge, after considering the rival contentions of the parties, dismissed the writ petition holding that the claim for re-fixation of his initial pay in the entry cadre and that too after a lapse of more than 33 years was wholly unsustainable.
5. Sri.M.V. Bose, learned counsel for the appellant while assailing the judgment contends that the learned Single Judge has not considered the real issue involved in the case in its proper perspective. According to the learned counsel, ever since his entry in service in the Cochin Shipyard, he had been making representations for re-fixation of his pay. Further, he had joined the Cochin Shipyard on deputation and therefore he had been holding a lien on the post which he held in the General Reserve Engineer Force(GREF). The salary that he had been drawing in GREF ought to have been protected. Are the above contentions legally tenable?
WA No.1429 of 2008 -:3:-
6. It is beyond controversy that the appellant had joined the Shipyard on March 22, 1971 in the post of Store Keeper in the scale of pay of Rs.130-300. It is also the admitted position that at the time of joining duty in the Shipyard, he had been working in the GREF. According to the appellant, he had come over to the Shipyard on deputation basis. But, Ext.R2(a) will unambiguously show that the appellant was appointed in the post of Store Keeper in the scale of pay of Rs.130-300 after a due process of selection. In Ext.P1 application submitted by the appellant while seeking employment in the Shipyard he had made it abundantly clear that due to some family reasons it had become difficult for him to be away from his home town of Cochin. It was therefore that he requested for a suitable employment in Cochin. The other materials available on record will further show that the appellant, going by his qualification (Matriculation), was not entitled to hold any other post in the Shipyard. Obviously therefore he was offered the post of 'Store Keeper'. The said post was accepted by the appellant with his eyes wide open. In Ext.R2(a) it was made clear by the Shipyard WA No.1429 of 2008 -:4:- authorities that the appellant can join duty in the post of Store Keeper, if the offer made to him was acceptable. In Ext.R2(a) it was also made specifically clear that his scale of pay attached to the post of Store Keeper would be Rs.130-300. The appellant had admittedly joined duty as Store Keeper in the Shipyard pursuant to Ext.R2(a).
7. As mentioned earlier, appellant took voluntary retirement from the Shipyard in the year 1992. It is on record that he had received a sum of Rs.3,25,000/- towards the benefits envisaged under the VRS. It is contended by the learned counsel for the appellant that after joining duty in the Shipyard, he had been making repeated representations before his employer to re- fix his scale of pay.
8. It appears that appellant had filed O.P.No.10925/92 praying for a direction to the Shipyard to re-fix his salary and to protect his last drawn pay in GREF. A Division Bench of this Court ultimately disposed of the writ appeal arising from the above Original Petition directing the Shipyard to reconsider the matter and pass fresh orders on the representation submitted by WA No.1429 of 2008 -:5:- the appellant in this regard. A copy of the judgment is on record as Ext.P9.
9. The appeal preferred the Shipyard against the above judgment was disposed of by the Supreme Court with a direction to consider the representation on its merit, uninfluenced by any observation or direction made by the High Court and ignoring the delay. A copy of the order passed by the apex court is available on record as Ext.P11.
10. The Shipyard considered the claim made by the appellant and passed Ext.P12 order holding that the request for re fixation of the basic pay with effect from March 1971 was unsustainable . The above order was challenged by the appellant in the present writ petition.
11. It may at once be noticed that there is nothing on record to show that the appellant joined the service of Shipyard on deputation basis. On the contrary, Exts.P1 and Ext.R2(a) will unambiguously show that he had in fact given up his employment in GREF and joined the Shipyard as a fresh entrant in the scale of WA No.1429 of 2008 -:6:- pay of Rs.130-300. In that view of the matter we are not persuaded to accept the plea made by the appellant that the Shipyard was not justified in refusing to re-fix his pay in the entry cadre by protecting his last drawn pay of Rs.430/- in GREF. As mentioned by us earlier, no document has been produced to show that he had joined the Shipyard on deputation basis and that his pay in GREF was protected.
12. In this context, learned counsel seeks the assistance of F.R. 22 of the Fundamental Rules. It is contended by the learned counsel that if the above Rule is applied in his case, he would be entitled to get his pay in the Shipyard fixed on par with the last drawn pay in the GREF. We are unable to agree. First of all it is to be noticed that petitioner had resigned from GREF and joined the service of Cochin Shipyard. We have already referred to Exts.P1 and R2(a) in this connection. As mentioned earlier, the appellant has not produced any document to show that he retained any lien on his post in the GREF even assuming he had come over to the Cochin Shipyard on deputation basis. The argument advanced on the basis of the so called lien is also WA No.1429 of 2008 -:7:- wholly misconceived. In any view of the matter there can be no doubt that Rule 22 would not apply in the case of the appellant.
13. The above contention based on Rule 22 was considered by the learned Single Judge and repelled rightly in our view. We do not find any reason to take a different view especially on the basis of the admitted facts and circumstances of this case and also on a plain reading of Rule 22 of the Fundamental Rules.
14. Learned counsel for the respondent has invited our attention to the decision of the Supreme Court in A.K. Bindal and another v. Union of India and others [(2003) 5 SCC 163]. In the above decision their Lordships have held thus:
"While dealing with the Scheme which is in business world known as "golden handshake", the main purpose of paying this amount is to bring about a complete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period." (emphasis supplied by us)
15. As has been noticed already, the appellant retired from WA No.1429 of 2008 -:8:- the service of the Shipyard way back in the year 1992, after accepting the benefits due under the VRS. He approached this Court after his retirement clamouring for re-fixation of his scale of pay in his entry cadre. His claim was negatived by his employer. Still the appellant fought on.
The learned Single Judge has adverted to all the relevant aspects of the matter in their right perspective. We do not find any illegality in the view taken by the learned Judge. There is no merit in any of the contentions raised by the appellant. The appeal fails and it is accordingly dismissed.
S.R. Bannurmath, Chief Justice.
A.K. Basheer, Judge.
ttb WA No.1429 of 2008 -:9:-