Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR SATURDAY, THE5H DAY OF OCTOBER, 2013/13TH ASWINA, 1935 Con.Case(C).No. 76 of 2012 (S) IN WP(C).28769/2011 ---------------------------------------------------- AGAINST THE ORDER
/JUDGMENT
IN WP(C) 28769/2011 of HIGH COURT OF KERALA DATED0908-2011 PETITIONER(S)/PETITIONER: ------------------------------------------------ DR.B.KARUNAKARAN S/O.G.BHASKARAN, AGED67YEARS (RETD.READER AND HEAD OFTHE DEPARTMENT OF SANSKRIT S.N.COLLEGE, KOLLAM), RESIDING AT "KARUNYA" MUNDAKKAL EAST, THUMBARA, KOLLAM-691001. BY ADV. SRI.T.V.AJAYAKUMAR RESPONDENT(S)/1ST AND3D RESPONDENTS IN THE WP(C): --------------------------------------------------------------------- --------------------------------- 1. SHRI.JOSEPH (FATHER'S NAME NOT KNOWN, AGED ABOUT50YEARS) REGISTRAR-IN-CHARGE, UNIVERSITY OF CALICUT P.O.CALICUT UNIVERSITY, KOZHIKODE-673635.
2. SHRI. ABDUL SALAM, (FATHER'S NAME NOT KNOWN, AGED ABOUT59YEARS) VICE CHANCELLOR, UNIVERSITY OF CALICUT P.O.CALICUTUNIVERSITY, KOZHIKODE-673635. R1-R2 BY ADV. SRI.SANTHOSH MATHEW,SC,CALICUTY UNIVERS R BY SRI.SANTHOSH MATHEW,SC,CALICUT UNIVERSITY THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON119.2013, THE COURT ON510.2013 DELIVERED THE FOLLOWING: APPENDIX COC762012 PETITIONER(S) EXHIBITS ANNEXURE-I: CERTIFIED COPY OF THE JUDGMENT
DATED98-2011 IN WP(C).28769/2011. ANNEXURE-II: TRUE COPY OF THE REPRESENTATION DATED129-2011 SUBMITTED BY THE PETITIONER TO THE RESPONDENTS. ANNEXURE-III: TRUE COPY FOT HE ACKNOWLEDGEMENT CARD DATED149-2011 ISSUED TO THE IST RESPONDENT. ANNEXURE-III(A):TRUE COPY OF THE ACKNOWLEDGMENT CARD DATED149-2011 ISSUED TO THE2D RESPONDENT. ANNEXURE-IV: TRUE COPY OF THE I.A.19956/11 IN FILED BY THE RESPONDENTS IN WP(C).28769/2011 DATED612-2011. ANNEXURE V-TRUE COPY OF THE STATEMENT OF ARREARS OF SALARY AND PENSION TO THE PETITIONER ANNEXURE VI-TRUE COPY OF ORDER
DT.21.1.2012 ISSUED BY THE REGISTRAR ANNEXURE VII-TRUE COPY OF LETTER DT.15.2.2012 ANNEXURE VIII-TRUE COPY OF APPLICATION DT.7.3.2012 OF THE PETITIONER ANNEXURE IX-TRUE COPY OF DO. DATED83.2012 ANNEXURE X-TRUE COPY OF ORDER
DT.14.3.2012 ANNEXURE XI-TRUE COPY OF ORDER
DT.27.3.2012 ANNEXURE XII-TRUE COPY OF REPREENTATION DT.16.4.2012 ANNEXURE XIII-TRUE COPY OF DO. DT.18.4.2012 ANNEXURE XIV- DO. DO. DATED115.2012 ANNEXURE XV-TRUE COPY OF ORDER
DT.27.3.2012 ANNEXURE XVI-TRUE COPY OF LETTER DT.7.6.2012 ANNEXURE XVI(A)- COPY OF APPLICATION DT.7.6.2012 SUBMITTED BY THE PETITIONER ANNEXURE XVI(B)- DO. DO ANNEXURE XVI )- TRUE COPY OF CORRECTED SALARY CERTIFICATE ISSUED BY THE PRINCIPAL, SN COLLEGE, KOLLAM. ANNEXURE XVII-COPY OF STATEMENT OF DETAILS OF PENSION ARREARS ANNEXURE XVIII-TRUE COPY OF RELEVANT EXTRACT OF THE PASS BOOK OF THE PETITIONER ISSUED BY sbt ANNEXURER XIX-TRUE COPY OF REPRESENTATION DT.30.6.2012 SUBMITTED BY THE PETITIONER ANNEXURE XX-TRUE COPY OF REVISED STATEMENT OF PENSION ARREARS FROM14.2004 TO313.2012 coc 76/2012 2 ANNEXURE XXI-TRUE COPY OF STATEMENT SHOWING COMMUTATION DEDUCTION FROM SALARY FOR THE PERIOD FROM DECEMBER 1999 TO313.2004 RESPONDENTS' EXHIBITS ANNEXURE I - TRUE COPY OF ORDER
DATED211.2012 ISSUED BY THE UNIVERSITY OF CALICUT ANNEXURE2TRUE COPY OF ORDER
DATED173.2012 ISSUED BY THE UNIVERSITY OF CALICUT. ANNEXURE3TRUE COPY OF ORDER
DT.27.3.2012 ISSUED BY DO ANNEXURE4TRUE COPY OF STAEMENT RELATING TO THE PAYMENT OF PENSION DISBURSED TO THE PETITIONER ANNEXURE R1(A)-TRUE COPY OF JUDGMENT
IN OP NO.24633/1998 ANNEXURE R1(B)-TRUE COPY OF ORDER
DT.19.2.2010 OF THE CHANCELLOR ANNEXURE R1(C)-TRUE COPY OF ORDER
DT.21.1.2012 ANNEXURE R1(D)-TRUE COPY OF ORDER
DT.17.3.2012 ANNEXURE R1(E)-TRUE COPY OF ORDER
DT.27.3.2012 ANNEXURE R1(F)-TRUE COPY OF STATEMENT RELATING TO PAYMENT OF PENSION DISBURSED TO THE PETITIONER ANNEXURE R1(G)-PHOTO COPY OF ORDER
PASSED BY THE UNIVERSITY DT.10.8.2012 ANNEXURE R1(H)0TRUE COPY OF STATEMENT PERTAINING TO PENSION PAYMENT TO THE PETITIONER FROM14.1999 TO MAY 2012 ISSUED BY THE SUB TREASRY OFFICER. ANNEXURE R1(I)-PHOTO COPY OF CALCULATION STATEMENT PREPARED BY THE UNIVERSITY ANNEXURE R1(J)-TRUE COPY OF ORDER
DT.29.10.2012 ANNEXURE R1(K)-PHOTO COPY OF CALCULATION STATEMENT MADE BY THE UNIVERSITY ANNEXURE R1(L)-PHOTO COPYU OF CALCULATION STATEMENT ANNEXURE R1(M)- PHOTO COPY OF BILL EVIDENCING THE AMOUNT CREDITED BY THE UNIVERSITY TO THE ACCOUNT OF THE PETITIONER. ANNEXURE1PRODUCED ALONG WITH THE STATEMENT DT.14.9.2012 - TRUE OPY OF ORDER
DATED108.2012 ISSUED BY THE UNIVERSITY T.R.RAMACHANDRAN NAIR, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - C.O.(C) No. 76 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - - - DATEDTHIS THE5H DAYOF OCTOBER, 2013 JUDGMENT
The petitioner in the writ petition is aggrieved by the non compliance of the directions in Annexure I judgment. It is pointed out that as per the judgment, various directions have been issued by this Court to quantify the benefits allowable to the petitioner as per Ext.P4 and disburse the same within a period of three months from the date of receipt of a copy of the judgment.
2. Respondents 1 and 2 are respectively the Registrar and Vice Chancellor of the University of Calicut. To recapitulate the history of the litigation, the petitioner's case for various reliefs, was initially considered by this Court in O.P.No.24633/1998 wherein he complained about the denial of appointment as Professor of Sanskrit in spite of his selection. This Court, by Annexure R1(a) judgment (produced along with the counter affidavit dated 19.7.2012) directed the Chancellor of the University to consider the question as to what relief the petitioner is entitled for illegally denying him the benefit of selection made by a properly constituted COC No.76/2012 -2- selection committee headed by the Vice Chancellor himself and the consequential notional appointment. The above direction was issued in the light of the fact that by the time of disposal of the original petition, the petitioner has long passed the age of superannuation. Thereafter, the Chancellor passed an order which is produced as Ext.P4 in W.P.(C) No.28769/2010 and complaining about the non implementation of the same, the said writ petition was filed.
4. After the filing of the Contempt Case, various amounts have been paid to the petitioner, as is clear from the affidavits of the University. At the time of final hearing, the controversy has narrowed down to one point, viz. whether the petitioner is entitled for grant of benefits like salary other than pensionary benefits. According to the learned counsel for the petitioner, in the light of the order passed by the Chancellor which was directed to be implemented by Annexure I judgment, the petitioner is entitled for grant of salary and allowances, but the learned Standing Counsel for the University submits that since notional appointment alone was granted, he was entitled only for the pensionary benefits which have been sanctioned and disbursed fully. COC No.76/2012 -3- 5. Since all the disputes have been crystallised in the two judgments, it is not necessary to elaborately consider the points of dispute other than the question whether the benefits disbursed already will represent the entire monetary benefits eligible to be granted to the petitioner and in that regard, is there any non compliance.
6. To find out whether the petitioner has been ordered to be paid anything other than the pensionary benefits, I will refer to the various details contained in the judgment Annexure I and the subsequent orders passed by the University.
7. In para 5 of Annexure I judgment, the counter affidavit filed by the Chancellor of the University has been extracted. Therein, the stand taken, after referring to Ext.P4 order, is as follows: "9. In compliance with the direction of High Court in Ext.P2 judgment dated 24.11.2009, the Chancellor, University of Calicut issued Ext.P4 order that the petitioner is eligible for notional appointment as Professor of Sanskrit, University of Caicut in the scale of pay of 2450 - 3600 with effect from 19.8.1994 or from the date on which any appointment was made by the University from the Notification dated 17.10.1987, whichever is later, with all consequential pensionary benefits. The University of Calicut COC No.76/2012 -4- is therefore directed to take further stage in the matter and report compliance. It is clear from Ext.P4 order that the 2nd respondent held that the writ petitioner is eligible for monetary benefits by way of fixation of revised scale of pay and also all admissible allowances from the date of his notional appointment together with consequential pensionary benefits on his retirement." The Chancellor's stand is that the writ petitioner is eligible for monetary benefits by way of fixation of revised scale of pay and also all admissible allowances from the date of his notional appointment together with consequential pensionary benefits on his retirement.
8. In the statement dated 25.5.2012, filed on behalf of the University by the learned Standing Counsel, four documents have been produced. Annexure 1 is the order passed by the University with regard to sanction for notional appointment with admissible allowances and consequential pensionary benefits. Annexure 2 is the order dated 17.3.2012 whereby the Vice Chancellor accorded sanction to reckon the past service of the petitioner as qualifying service for pensionary benefits.
9. The above order refers to various earlier orders passed by the University and the decision of the Syndicate. Para 2 shows that the COC No.76/2012 -5- Syndicate by resolution dated 9.3.2012 resolved that the petitioner will be eligible "for all admissible allowances with effect from 19.8.1989 till the date of retirement on attainment of 60 years of age. He will also be eligible for the pensionary benefits thereafter." In para 3 it is stated that the pay and allowances already drawn by him during the service as Lecturer, S.N. College, Kollam in the above period from 19.8.1989 to the date of his retirement in the College service at the age of 55 shall be deducted from the benefits admissible to him. The pensionary benefits already drawn by him will also be deducted from the admissible amount. Annexure 3 is the order dated 27.3.2012 by which sanction was accorded for payment of the difference in pension as well as pensionary benefits recommended by the Joint Director of Local Fund Audit with effect from 3.11.2003. Para 2 of the said order refers to an earlier University Order dated 14.3.2012 and it is stated that the petitioner will be eligible for "admissible allowances" with effect from 19.8.1989 till the date of retirement on attainment of 60 years of age, i.e. 31.3.2004. It is further stated therein that he would also be eligible for the "pensionary benefits" thereafter. With regard to the deduction of salary already drawn by him also, mention is made. After COC No.76/2012 -6- referring to the petitioner's application for grant of pensionary benefits, the sanction has been accorded. Therefore, it is clear from Annexures 2 and 3 that the decision of the University is to grant all eligible benefits and admissible allowances as well as pensionary benefits and these two components of the benefits are thus shown separately.
10. In the reply affidavit filed by the petitioner on 15.6.2012 he has produced the copy of the University Order dated 14.3.2012 as Annexure X which is referred to in Annexure 3 order mentioned above. The said order also refers to the history as well as the orders passed by the University from time to time. Para 8 refers to the order dated 21.1.2012 and it is stated that notional appointment was given to the petitioner as Professor in the Department of Sanskrit with effect from 19.8.1989 in the pay scale of 2450-3600 with admissible allowances and consequential pensionary benefits and it was ratified by the Syndicate on 23.1.2012. Paragraphs 10 and 11 extracts the resolution of the Syndicate in its meeting held on 9.3.2012 which reads as follows: "10. As per the paper read as 10th, the Syndicate at its meeting held on 09/03/2012 resolved that "Dr.B.Karunakaran will be COC No.76/2012 -7- eligible for all admissible allowances with effect from 19/08/1989 till the date of retirement on attainment of 60 years of age. He will also be eligible for the pensionary benefits thereafter.
11. "However, the pay and allowances already drawn by him during his service as Lecturer, SN College, Kollam in the above period from 19/08/1989 to the date of his retirement in the College service at the age of 55 shall be deducted from the benefits admissible to him. The pensionary benefits already drawn by him will also be deducted from the admissible amount." It is evident, therefore, that the said order upholds that the petitioner is eligible for all admissible allowances with effect from 19.8.1989 till the date of retirement on attainment of 60 years of age, i.e. 31.3.2004. He will also be eligible for the pensionary benefits thereafter. The pay and allowances drawn him for his service upto the age of 55 years as Lecturer in S.N. College, Kollam will have to be deducted from the benefits admissible to him and the pensionary benefits already drawn by him also will have to COC No.76/2012 -8- be deducted. Anneuxre XV is the University Order dated 27.3.2012 wherein a slight modification is made with regard to the order Annexure X dated 14.3.2012 in the last para, i.e. with regard to the date of eligibility alone for payment of pay and allowances. The date 31.3.2004 is modified as 2.11.2003. The said order reads as follows: "Dr.B.Karunakaran will be eligible for all admissible allowances with effect from 19/08/1989 till the date of retirement on attainment of 60 years of age i.e. 02/11/2003. He will also be eligible for the pensionary benefits thereafter." 11. In the affidavit filed by the respondents dated 25.7.2012 various orders have been referred to. Annexure R1(a) is the judgment of this Court in O.P.No.24633/1998. Annexure R1(b) is the order of the Chancellor. The said order will show that it is found that the petitioner is eligible for notional appointment as Professor of Sanskrit in the University of Calicut in the scale of pay of 2450-3600 with effect from 19.8.1989 with admissible allowances and consequential pensionary benefits. Therefore, the allowances and pensionary benefits form different components and pensionary benefits alone is not the one granted. The operative portion of COC No.76/2012 -9- the above order is extracted below: "6. In view of the above, the Chancellor, University of Calicut has ordered that Dr.B.Karunakaran is eligible for notional appointment as Professor of Sanskrit in the University of Calicut in the scale of pay of `2450-3600 w.e.f 19/08/1989 or from the date on which any appointment was made by the University from the notification dated 17/10/1987 whichever is later, with admissible allowances and consequential pensionary benefits. The University of Calicut is therefore directed to take further steps in the matter and report compliance." Para 6 of the affidavit refers to the consequential order passed by the University dated 21.12012 wherein also notional appointment is given with "admissible allowance and consequential pensionary benefits with effect from 3.11.2003". Annexure R1(e) is the order dated 27.3.2012, which as already noticed, is the one passed with regard to the pensionary benefits of the petitoiner on the basis of his application and a statement is also attached showing the eligible amounts, as Annexure R1(f). Along with the statement of the learned Standing Counsel dated 14.9.2012 an order dated COC No.76/2012 -10- 10.8.2012 of the University has been produced as Annexure R1(g), addressing the complaint of the petitioner with regard to the shortage of monthly pension and showing that orders have been passed showing the revised pension based on the various Government Orders upto 31.5.2012.
12. In the additional affidavit dated 3.11.2012 the order dated 10.8.2012 is produced as Annexure R1(g) (which is already referred to). The statement showing the split up details of the monthly pension is produced as Annexure R1(h) and an order issued to release the pension revision arrears, by the Finance Officer is also produced.
13. To the above statement, the petitioner has filed a counter affidavit dated 13.12.2012 producing the copy of the revised statement of pension arrears from 1.4.2004 to 31.3.20122 and another statement showing commutation deduction from the salary for the period from December, 1999 to 31.3.2004. Various calculations have been shown therein and the total amount payable is mentioned. The contention is that so far the amount of arrears of salary has not been paid, going by the various statements filed by the University. The petitioner points out that the University has flouted the orders passed by this Court. COC No.76/2012 -11- 14. In the reply affidavit filed by the respondents dated 7.8.2013 to the above counter affidavit, the claim for salary arrears is disputed and it is stated that as the petitioner is found eligible only for notional appointment, he is not eligible to get the salary for the period he has not worked, as he has only been notionally appointed to the post. In para 5, the details of the amount of pension which have been finally released, has also been mentioned.
15. Heard learned counsel for the petitioner Shri T.V. Ajayakumar and learned Standing Counsel for the University, Shri Santhosh Mathew.
16. The only question is whether the stand taken by the University that the petitioner is only entitled for the pensionary benefits, is correct.
17. Shri T.V. Ajayakumar, learned counsel for the petitioner contended that the said said stand is not correct in the light of the judgment Annexure I and the order passed by the Chancellor sanctioning the benefits as well as various University Orders which have also sanctioned the benefits including the resolution of the Syndicate. It is submitted that the change of stand by the University that he is only entitled for the pensionary benefits, is not correct. COC No.76/2012 -12- 18. Shri Santhosh Mathew, learned Standing Counsel for the University submitted that the appointment of the petitioner being only notional and as the petitioner has not actually served the University, he is not entitled for the other benefits.
19. Shri T.V. Ajayakumar, learned counsel for the petitioner relied upon two judgments, viz. State of Kerala v. Bhaskaran Pillai (2003 (1) KLT60 of a Division Bench of this Court and that of the Apex Court in Commissioner, Karnataka Housing Board v. C. Muddaiah {(2007) 7 SCC689 in support of his plea that when a claim of person is illegally denied, he is entitled for all consequential benefits.
20. After hearing both learned counsel, I am of the view that the petitioner's contention for payment of pay and allowances for the period in question is justified. In Annexure I judgment, directions have been given to implement Ext.P4 order passed by the Chancellor wherein the Chancellor found that the petitioner is eligible for notional appointment with effect from 19.8.1989 in the scale of pay of 2450-3600 "with admissible allowances and consequential pensionary benefits." The stand taken by the Chancellor when Annexure I judgment was rendered, is clear from para 9 of COC No.76/2012 -13- the judgment which has already been adverted to.
21. The first of the orders is Annexure I produced along with the statement filed by the learned Standing Counsel, which makes it clear that the Vice Chancellor has accorded sanction subject to the ratification of the Syndicate, the notional appointment of the petitioner as Professor in the Department of Sanskrit with effect from 19.8.1989 in the scale of pay of 2450-3600 with admissible allowances and consequential pensionary benefits with effect from 3.11.2003. The resolution of the Syndicate as extracted in the University Order dated 14.3.2002 produced as Annexure X by the petitioner, is very clear in that and the decision for grant of admissible allowances from 19.8.1989 till the date of attainment of 60 years of age as well as eligibility for the pensionary benefits. They have also decided to deduct the pay and allowances received as Lecturer in S.N. College, Kollam for the period fro 19.8.1989 to the date of his retirement from the said College at the age of 55 years as well as pensionary benefits already drawn by him This makes the position very clear and there is no ambiguity in the decision of the Syndicate and the University orders passed, viz. Annexure X as well as subsequent orders. COC No.76/2012 -14- 22. It is true that later orders have been produced by the University with regard to the sanction of pension, revised pension, etc. etc. But these two cannot be mixed up. Even though learned Standing Counsel, Shri Santhosh Mathew submitted by referring to the meaning of the word "notional" in the "Universal Dictionary of English Language". herein such an interpretation is not required in the light of the order of the Chancellor, Annexure I judgment and various orders passed by the University itself.
23. The principle of law as projected in the decisions in Bhaskaran Pillai's case (2003 (1) KLT60 and C. Muddaiah's case {(2007) 7 SCC689 will also support the case of the petitioner. The first one was a case of denial of promotion illegally and the Division Bench, after analysing the various decisions, was of the view that "where there is no fault on the part of the officer concerned, he must be paid the monetary benefits due to him consequent to the retrospective promotion and in appropriate cases it could be denied to him for valid reasons." Herein, the orders favour the claims of the petitioner.
24. C. Muddaiah's case {(2007) 7 SCC689 is also similar, wherein the the Apex Court held as follows in para 34: COC No.76/2012 -15- "We are conscious and mindful that even in absence of statutory provision, normal rule is "no work no pay". In appropriate cases, however, a court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering "as if he had worked". It therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a court of law and if such directions are issued by a court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected." 25. In that view of the matter, the plea that the petitioner is entitled for pensionary benefits alone, cannot be supported, which goes against the COC No.76/2012 -16- judgment of this Court. Therefore, the respondents will have to implement the directions in Annexure I judgment and the University will pass orders sanctioning the admissible allowances to the petitioner less that is drawn while working as Lecturer in S.N. College, Kollam. The same also will be quantified and disbursed.
26. Since a controversy had to be addressed by this Court, as already discussed, it is only proper that the respondents are given some time for making the payment. Accordingly, six weeks from today is granted to make the said payment. The Contempt Case is disposed of accordingly. No costs. (T.R.RAMACHANDRAN NAIR, JUDGE) kav/