BABY JOHN Vs. UNION OF INDIA AND ORS.

JUDGEMENT

(1.) THE petitioner joined the services of the 2nd respondent Board as a Mechanic cum Electrician on 20.11.1980. While under the services of the 2nd respondent Board, the petitioner applied for the post of Assistant Electrical Engineer under the Kerala State Co -operative Bank. He was offered appointment by the said Bank through a memo dated 29.6.1991. On receipt of the memo of appointment, the petitioner approached the 2nd respondent Board and requested the Board to retain his lien in the services under the Board for a period of two years or till such time he was permanently absorbed by the Kerala State Co -operative Bank. Acting on the request of the petitioner, the 2nd respondent, by Ext. P1 order dated 23.12.1991, permitted the petitioner to retain his lien under the respondent Board for a period of two years or till such time as he was permanently absorbed in the Kerala State Co -operative Bank whichever is earlier subject to the condition that during the period of retention of lien, he contributed towards leave salary and pension contribution as per the Rules and failing which he would have to report back to the post he was occupying under the 2nd respondent Board. It was made clear in the said order that the 2nd respondent Board would not bear any liability with regard to leave salary and pension contribution. Further, it was made clear in the said order that the petitioner should either revert to the service of the 2nd respondent Board or resign from the services of the 2nd respondent Board at the end of the lien period of two years. The facts in the writ petition would reveal that although the petitioner took up the appointment under the Kerala State Cooperative Bank, he subsequently got an appointment in the Electrical Inspectorate of the Government of Kerala as an Assistant Electrical Inspector. He therefore approached the 2nd respondent Board, once again, seeking a retention of the lien under the 2nd respondent Board for the purposes of taking up the new assignment under the Government of Kerala. Thus time around, by Ext. P3 order dated 10.8.1992, the 2nd respondent Board informed the petitioner that his request for retention of lien for the originally agreed two years period could be considered on the petitioner complying with the conditions in the said order. By Ext. P4 letter dated 12.11.1992, the petitioner agreed to the conditions prescribed by the 2nd respondent Board, and on the basis of that, the 2nd respondent, by Ext. P5 order dated 26.2.1993, informed the petitioner that he would have to remit an amount of Rs. 3,150/ - towards the pension contribution and leave salary contribution, with interest, for the lien period from 26.12.1991 to 13.8.1992. In Ext. P5 order, the 2nd respondent Board also requested the petitioner to submit a formal resignation from the services of the Board with effect from 14.8.1992. Acting on the instructions of the 2nd respondent Board, the petitioner submitted Ext. P8 resignation letter resigning from the services of the 2nd respondent Board with effect from the after noon of 13.8.1992. It was immediately thereafter that he joined the services of the State Government with effect from 14.8.1992. The grievance of the petitioner in the writ petition is with regard to the refusal by respondents 4 and 5, to reckon the period of service rendered by the petitioner under the 2nd respondent Board for the purposes of computing the pensionary benefits that became payable to the petitioner consequent to his retirement with effect from 30.11.2012. It would appear that when the petitioner made a request before the 5th respondent for reckoning his services under the 2nd respondent Board while computing the qualifying service for the grant of pension, the said respondent, by Ext. P15 order, informed the petitioner that his service under the 2nd respondent Board could not be counted for the grant of pension. The petitioner thereafter preferred an appeal against Ext. P15 before the 4th respondent but the said appeal was rejected by Ext. P22 order dated 8.6.2011, wherein the 4th respondent also took the stand that, insofar as there were no orders or rules to count formal service under autonomous bodies, it was not possible to consider the application of the petitioner for reckoning such service for the purposes of payment of pension. In the writ petition, the petitioner impugns Exts. P15, P22 and also Ext. P14 of the 2nd respondent Board, wherein, the 2nd respondent informed the petitioner that his service under the Kerala State Co -operative Bank could not be termed as 'Government Service', and, therefore, arrangements had been made to refund the amount of Rs. 3,150/ - that was paid by the petitioner towards pension contribution and leave salary contribution. It is the contention of the petitioner that inasmuch as his services under the 2nd respondent Board were not terminated till the submission of the resignation letter with effect from the after noon of 13.8.1992, it could not be said that he was not under the services of the 2nd respondent Board till that date. It is further contended that the resignation letter that was submitted by him had to be understood as a letter seeking to relieve him from the services of the 2nd respondent Board so as to take up employment under the State Government. The petitioner relies on the correspondence entered into between the petitioner and the 2nd respondent Board, which would suggest that it was with the consent of the 2nd respondent Board, that the lien of the petitioner with regard to his services under the 2nd respondent Board was retained by the 2nd respondent, which lien culminated only with the resignation that took effect from the after noon of 13.8.1992.

(2.) A counter affidavit has been filed on behalf of the 2nd respondent. Therein, it is pointed out that while the 2nd respondent Board had initially consented to the retention of lien of the petitioner under the services of the 2nd respondent Board, and had also issued communications to the petitioner on that basis, in subsequent audit proceedings, it was pointed out that the action of the 2nd respondent Board was contrary to the provisions of the Fundamental Rules which were applicable to the 2nd respondent Board. It is stated that it was under those circumstances that the 2nd respondent Board subsequently resiled from their earlier stand, and directed a refund of the amounts collected from the petitioner by way of contribution towards pension and leave salary, together with interest thereon, for the lien period. It is further pointed out that based on the same audit objection, the 2nd respondent Board was constrained to treat the petitioner as having been under the services of the 2nd respondent Board only for the period from 20.11.1980 to 23.12.1991, as against the period from 20.11.1980 to 13.8.1992 as was originally stated. It is further contended that at any rate, in the absence of any order of the State Government that recognises the past service rendered by an employee in a Central autonomous body as reckonable for the purposes of pension, the petitioner would not be entitled to any proportionate contribution from the 2nd respondent Board towards pension amounts that are allegedly due to him.

(3.) I have heard the learned counsel for the petitioner, learned Standing counsel for the 2nd respondent Board and also the learned Government Pleader for respondents 4 and 5.