Kerala High Court
T.V.Hamzakoya vs State Of Kerala Represented By Its on 26 January, 2011
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 13TH DAY OF JUNE 2014/23RD JYAISHTA, 1936
WA.No. 538 of 2011 ( ) IN WP(C).30488/2008
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AGAINST THE JUDGMENT IN WP(C) 30488/2008 of HIGH COURT OF KERALA DATED
26-01-2011
APPELLANT(S)/PETITIONER:
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T.V.HAMZAKOYA, AGED 59 YEARS
S/O.MUHAMMED KUTTY
S.K.MANZIL, PARAPPUR ROAD
KOTTACKAL, MALAPPURAM DISTRICT.
BY ADV. DR.GEORGE ABRAHAM
RESPONDENT(S)/RESPONDENTS:
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1. STATE OF KERALA REPRESENTED BY ITS
PRINCIPAL SECRETARY, FISHERIES DEPARTMENT
GOVERNMENT SECRETARIAT,THIRUVANANTHAPURM, 695 001
2. KERALA STATE CO-OPERATIVE FEDERATION FOR
FISHERIES DEVELOPMENT LTD, (MATSYAFED)
REP.BY ITS MANAGING DIRECTOR, HEAD OFFICE OF THE
MATSYAFED, MATSYA BHAVAN, THIRUVANANTHAPURM 695 003
3. GENERALA MANAGER,
KERALA STATE CO-OPERATIVE FEDERATION FOR
FISHERIES DEVELOPMENT LTD, (MATSYAFED), MATSYA BHAVAN
THIRUVANANTHAPURM, 695 003
R2 & R3 BY ADV. SRI.GEORGE POONTHOTTAM, SC,MATSYAFED
R1 BY GOVERNMENT PLEADER SIR.M.MOHAMMED SHAFI
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2014, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:NG:
ANTONY DOMINIC & ALEXANDER THOMAS, JJ.
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W.A.No. 538 of 2011
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Dated this the 13th day of June, 2014
J U D G M E N T
ANTONY DOMINIC, J.
The appellant filed W.P.(C).No.30488/2008 seeking the monetary benefits following the directions in Ext.P5 judgment, where this Court recognized his entitlement to be granted five advance increments with effect from 5.7.1980. However, the learned Single Judge rejected the Writ Petition on the ground that the appellant had not challenged Ext.P6 order passed by the respondents denying him the benefit claimed. It is aggrieved by this judgment, this appeal is filed.
2. We heard the learned counsel for the appellant, the learned Government Pleader appearing for the 1st respondent and the learned Standing Counsel appearing for respondents 2 and 3.
3. The appellant commenced his service as a Lower Division Clerk in the Revenue Department. Thereafter, he joined the Kerala Fishermen Welfare Corporation, where he is stated to have absorbed w.a.538/11 - : 2 :-
with effect from 5.7.1980. He continued in service even after the Corporation became Matsyafed, the 2nd respondent. While so, he staked a claim for the benefit of five advance increments that was due to him. The claim was rejected and, therefore, he approached this Court by filing W.P.(C).No.36521/2003. During the pendency of the Writ Petition, on an application made by the appellant, he voluntarily retired from service with effect from 16.1.2006.
4. Subsequently, W.P.(C).No. 36521/2003 was heard and disposed of by this Court by judgment dated 20th March, 2006 ( Ext.P5), wherein it was held thus.
"8. 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 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 representation, the Matsyafed shall hear the petitioner."
Although the judgment entitled the appellant to monetary benefits of five advance increments with effect from 5.9.1980, respondents issued Ext.P6 order dated 24.2.2007 holding that the appellant is entitled only to have his terminal benefits re-fixed reckoning the advance increments also and accordingly, his terminal benefits were w.a.538/11 - : 3 :-
also re-fixed.
5. Dissatisfied with the benefits thus given, the appellant filed Contempt of Court Case No.1039/2008. That contempt case was disposed of by Ext.R2(d) judgment dated 22nd September 2008, holding that in issuing Ext.P6, there was substantial compliance in Ext.P5 judgment in W.P.(C).No.36521/2008 and directing that if the appellant was aggrieved by the benefit granted, it shall be open to him to initiate independent proceedings against Ext.P6. It appears that the appellant represented the matter against Ext.P6 by filing representations.
6. This led to Ext.P7 issued by the 3rd respondent calling for the details of the period worked by the appellant and the benefit extended to him. It appears that the matter was therafter considered by the Board of Directors on 24.2.2007 and finally Ext.P13 order was issued. In Ext.P13 it is stated that on quantification, it was found that if the benefits were to be paid to the appellant, the appellant would have entitled to Rs. 2,59,343/-. However, by this order, the appellant's claim for monetary benefits was declined. Despite this, he was ordered to be paid only Rs. 1,50,000/- in full and final settlement of the amounts payable to him.
w.a.538/11 - : 4 :-
7. Operative portion of Ext.P13 reads thus:
"5. ..... Therefore, the claim for back arrears upon giving the advance increments is not a legally enforceable claim and the Federation is not in a position to concede to the demand. However, imbibing the true spirit of the decision of the Board of Directorsspecial of the Matsyafed dated 28.03.2007 and considering the circumstances warranting a sympathetic consideration to the claim of Sri.T.V.Hamzakoya on the one hand and the critical financial position of the Matsyafed on the other, it is felt that a reasonable and logical decision balancing the conflicting interests of Sri.T.V.Hamzakoya to get the back arrears consequent on fixation of advance increments and the critical financial position of Matsyafed will be one to disburse 50% of the back arrears to Sri.T.V.Hamzakoya, if heordered tothat ought be entitled for the same. Accordingly, it is Sri.T.V.Hamzakoya be paid a lumpsum amount of Rs. 1,50,000/- which is above 50% of the back arrears in full and final settlement of the amount payable to Sri.T.V.Hamzakoya, pursuant to the decision of the Board of Directors of Matsyafed as resolved in its Resolution No.360/2007 dated 28.03.2007.
the directionsThisthe Hon'ble Court of Kerala in its interim order dated
6. order is issued in due obedience and compliance of of 17.12.2008 in W.P.(C).No. 30488/2008 pending in the High Court."
8. In the mean time the appellant had approached this Court by filing Writ Petition and subsequently on receipt of Ext.P13 the Writ Petition was amended producing the same. As already stated, the learned Single Judge negatived the claim of the appellant only on the ground that in the absence of the appellant having challenged Ext.P6, he cannot claim the balance amount due.
9. The learned counsel for the appellant contended that Ext.P6 had lost its relevance on account of Ext.P13 and as Ext.P13 was challenged by him by amending the Writ Petition, the learned Single Judge was wrong in negativing his claims. On behalf of the w.a.538/11 - : 5 :-
respondents, the stand taken was that the appellant was not entitled to the monetary benefits and that therefore fixation of the terminal benefits and the denial of the claim as evidenced by Ext.P13 are legal and valid.
10. We have considered the submissions made.
11. The limited question that arises for our consideration is whether the respondents were justified in denying the claim of the appellant for the balance amount due to him towards monetary benefits that are payable to him following the directions in Ext.P5 judgment. A Reading of Ext.P5 judgment shows that in categorical terms this Court directed the 2nd respondent to grant the appellant five advance increments with effect from 5.7.1980. Although it is true that subsequently the appellant himself restricted his claim from 1.4.1987, reading of the directions in the judgment would show that the appellant is entitled to the monetary benefits for the period from 1.4.1987. If that be so, denial of that monetary benefit, as is revealed from Ext.P13, is absolutely illegal.
12. It is contended by the learned counsel for the appellant that Rs.1,50,000/- paid by the respondents was accepted by the appellant without complaint. A reading of Ext.2(e), receipt issued to w.a.538/11 - : 6 :-
him, shows that the payment received was subject to the result of the Writ Petition. This therefore means that the payment was accepted only without prejudice to the contentions of the appellant in the Writ Petition. Therefore this contention raised by the respondents cannot be accepted.
13. As far as the fact that the appellant has not challenged Ext.P6 as found by the learned Single Judge is concerned, although it is true that there is no express challenge against Ext.P6, subsequent to Ext.P6, the respondents themselves have reconsidered the entire issue and finally issued Ext.P13, where the claim for monetary benefits claimed by the appellant was turned down and in spite of it, Rs. 1,50,000/-was paid. Therefore because of Ext.P13 order passed by the respondents, Ext.P6 stood modified and merged with it and the challenge to Ext.P13 would have been sufficient. Therefore the absence of challenging against Ext.P6 was not fatal to his claim raised in the Writ Petition. We, therefore, cannot accept the conclusion of the learned Single Judge.
The Writ Appeal will stand allowed and the judgment of the learned Single Judge is set aside. The Writ Petition filed by the appellant will stand disposed of setting aside Ext.P13 to the extent w.a.538/11 - : 7 :-
the monetary claim raised by the appellant is declined. The respondents are directed to disburse the balance amount due to the appellant, as expeditiously as possible, at any rate, within eight weeks of receipt of a copy of this judgment. It is directed that in the event, the amount is not paid, the balance amount due will carry interest at the rate of 12% per annum with effect from today.
Sd/-
ANTONY DOMINIC, JUDGE Sd/-
sdk+ ALEXANDER THOMAS , JUDGE
///True copy///
P.S. to Judge