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Daniel Oommen v/s National Institute of Technology, Kozhikode, Represented by Its Registrar & Others


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    WA. No. 120 of 2020

    Decided On, 13 February 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE A.M. SHAFFIQUE & THE HONOURABLE MRS. JUSTICE MARY JOSEPH

    For the Appellant: Nidhi Sam Johns, Lijo Joseph, A. Kevin Thomas, Advocates. For the Respondents: R2-R3, P. Vijayakumar, ASG of India.



Judgment Text


Mary Joseph, J.

1. This Writ Appeal is directed against judgment of the learned Single Judge dated 14.10.2019 in W.P.(C) No.6189 of 2016.

2. Writ petitioner was working as a Lecturer in Electrical Department, Regional Engineering College (for short 'REC'), Calicut (NIT) from 25.01.1967 till 01.10.1981. He had a total working experience of 13 years. He was originally appointed as Associate Lecturer in REC. In 1969 he was promoted as Lecturer. He was granted extra ordinary leave for 5 years from 01.10.1981 and permission to take up assignment abroad retaining his lien in the 1st respondent college. While so, he got an opportunity to work as a Design Engineer in the Ministry of Electricity and Water at Kuwait. The opportunity obtained being a rare one and beneficial to him, he requested for extension of leave to continue abroad. The factum was communicated to the Education Minister (Chairman of Board of Governors, REC, Calicut). Extension sought was rejected. He did not join the college. After several correspondences between the petitioner and the college, ultimately he was terminated from his employment with effect from 01.10.1986 without any pensionary benefits. When the Kuwait war started in the year 1990, petitioner had no other way than to return to India. He was repatriated by Government of India. Petitioner who had no job was struggling hard to meet both ends of life. In the midst of his hardships, the petitioner came to know that Government of India/Kerala is planning to reinstate persons who lost their job in India due to service in Kuwait. Petitioner approached the Education Minister of Kerala and the Chairman, Board of Governors, REC, seeking to reinstate him, but the exercise was futile. The respondent college was offering pension to retired hands from 05.12.1997. The respondent college was renamed as NITS by MHRDS and declared as deemed University under the NIT Act, 2005 and therefore, came under the pension scheme of the Central Government which makes provision for pension for all employees prior to January, 2004. Petitioner had worked in REC (NIT) for 18 years and denial of pension to him is alleged as violation of fundamental rights guaranteed by the Constitution. Petitioner is a senior citizen and is highly aggrieved by the denial of pension and left without any alternative and efficacious remedy had approached this Court by filing the Writ Petition on hand seeking the following reliefs:-

“i) Issue a writ in the nature of Mandamus to the respondents 1, 2, 3 & 4 forthwith to pay all terminal/pensioners benefits due to the petitioner with interest for the amounts due to him from the date on which it fell due up to the date of disbursement, reckoning his total qualifying service for 18 years.

ii) Declare that, the respondent are duty bound to draw and disburse all terminal benefits due to the petitioners, reckoning his entire qualifying service period of 18.

iii) Issue a writ in the nature of mandamus commanding the respondents 1, 2, 3 & 4 to consider and pass orders on Exhibit P7 representation, after affording an opportunity of hearing the petition.

iv) Issue such other order or writs which this Hon.Court deems fit, proper and equitable in the facts and circumstances of this case.”

3. The first respondent filed a detailed counter affidavit refuting all claims made by the petitioner. Writ Petition having been filed after a period of 30 years, they sought for dismissal of the case on account of delay and laches. Petitioner was also found fault with for having not filed any application for getting the leave extended prior to the expiry of the period of leave already granted. It was contended that the petitioner was not under the service of the Kerala State or Government of India and therefore, the grievance cannot be redressed by the State. Petitioner was a subscriber to the contributory provident fund which was optioned to the staff of REC in view of Pension Scheme and the deposit was already disbursed to him in July 1989 itself. It is also specified that there is no rule permitting grant of pension to an employee, who is dismissed from service.

4. To the counter, a reply affidavit was also filed by the writ petitioner reiterating the averments already made in the writ petition and stating that as per Statute 29 of the NIT Act, 2007, the employee of NIT who have rendered continuous service for not less than 10 years shall be granted with pensionery benefits without fail. It was pleaded that the petitioner is entitled to avail the said benefit.

5. Learned Single Judge, after hearing the arguments advanced and perusing the materials made available by the parties, found that the writ petitioner was not entitled to get the reliefs sought.

6. It is pertinent to note that the Writ Petition was filed after 30 years of dismissal from service. Here is a case where the petitioner, who had availed leave for 5 years with effect from 01.10.1981, failed to apply for extension of leave before the expiry of the period. He availed a more profitable assignment that had come to him, without applying for the leave already availed from REC(NIC). Thereafter he had applied vide Ext.P5 seeking for extension of leave before the Education Minister of the State after the expiry of the period. But, the Minister has no role to play in the affairs of REC then. A representation dated 01.10.1990 before the then Education Minister of Kerala and a request for service pension, before the REC on 01.11.2016, were also made as evidenced by Exts.P6 and P7 respectively.

7. Despite the respective authorities' inaction, he did not raise his grievance before any responsible statutory authority or court of law. The petitioner was unauthorisedly absent from his job at REC after the expiry of the leave granted to him for five years and failed to respond to correspondences made by REC in that regard. Ultimately that REC terminated his service as penalty for unauthorised absence. The order of dismissal has become final.

8. The learned Single Judge has relied on State of Kerala v. Varghese [2000 (1) KLT 762], wherein a challenge was raised against termination imposed on a delinquent employee 15 years back and the Division Bench held :

“But the question is whether order of termination which continued unchallenged for nearly 15 years, can be nullified after long period of unexplained action. We find from records that appellants have taken a definite stand about delayed approach to Court. But, same has not been dealt with in the judgment, though admittedly said point was urged by the State before learned Single Judge. Contextual facts depict that there was no challenge to the order for nearly 15 years. It is now well settled principle of law that while no period of limitation is fixed, but in the normal course of events, the period a party is required to file a civil proceeding ought to be guiding factor. While it is true that the extraordinary jurisdiction under Art. 226 of the Constitution of India is available to mitigate the sufferings of the people in general, but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law Courts on a very sound equitable principle. Hence, equitable doctrine, namely, delay defeats equity has its fullest application in the matter of grant of relief under Art. 226 of the Constitution. Discretionary relief can be had provided one has not, by his act or omission, given a go-bye to his rights. Equity favours a vigilant rather than an indolent litigant. This position has been highlighted by Apex Court in M.C. Ahmednagar v. Shah Hyder Beiq (2000 (1) SCALE 124). Above being the basic tenet of l

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aw, employee was required to show reason for his delayed approach. Except taking oft-repeated plea of having made representation, nothing further was placed on record. Making representations does not stall running of time and is not a sound ground to explain delay. Learned Single Judge was, therefore, clearly in error in granting relief to the employee. …...” 9. Petitioner was unable to point out any statutory provision which enables him to claim the terminal benefits, after the order of dismissal had become final. What was due to him was already paid and his demand is for pension which was not allowable at that point of time. 10. The Writ Petition has been dismissed by the learned Single Judge taking into account all these aspects and we do not find any ground to interfere with it. In the result, Writ Appeal is dismissed.
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