While the petitioner was working as Conductor in the 1st respondent Corporation, he was terminated from service with effect from 14/11/1980, pursuant to disciplinary action initiated. The order of termination was challenged by the petitioner in a writ petition filed before this court, which was disposed of by directing the respondents to consider a representation submitted by the petitioner. Consequently, the 1st respondent had issued Ext.P1 order modifying the punishment of termination from service as compulsory retirement. While issuing Ext.P1 the 1st respondent observed that, the petitioner had admitted the offence of committing misappropriation and an appeal filed by him was already dismissed and a further revision before the appellate tribunal was also rejected. However, based on the appeal for mercy made by the petitioner, the 1st respondent considered the sad plight of a former employee longing for his terminal benefits. Hence on a sympathetic consideration the termination was modified as compulsory retirement. It is observed in Ext.P1 that, “He can be re-employed”. For implementing of Ext.P1 order, the 2nd respondent had issued Exts.P2 memo requiring the petitioner to submit documents like Service Book, Pension Book etc. for processing the pension papers. It is stated that, even though the petitioner had produced all such documents required, the benefits were not paid to him. Hence the petitioner submitted Ext.P3 representation before the 1st respondent. A reminder was also submitted to the 1st respondent on 14/12/2000, as evidenced from Ext.P4. In Ext.P4 the petitioner claimed that he is entitled to get revised scale of pension as well as commuted value of pension. Since there was no response from the side of the 1st respondent, the petitioner again approached this court in a writ petition. In Ext.P5 judgment the said writ petition was disposed of along with batch of cases pertaining to payment of retirement benefits to pensioners in the 1st respondent Corporation, stipulating condition with respect to effecting payment of retirement benefits due to the employees. Consequent to Ext.P5 judgment, Ext.P6 order was issued by the competent authority in the 1st respondent Corporation, sanctioning gratuity due to the petitioner to the tune of Rs.2,598/-, treating the petitioner as compulsorily retired with effect from 14/11/1980. It is observed in Ext.P6 is that the petitioner is a non-pensionable employee. However the amount of gratuity was also not paid considering the outstanding liability by setting off such liabilities against the permitted amount. The petitioner again approached the 1st respondent seeking payment of monthly pension and other benefits. Such claims were rejected through Ext.P7 reiterating that the petitioner is a non-pensionable employee and hence not eligible for monthly pension, DCRG etc. It is aggrieved by Exts.P6 and P7 this writ petition is filed. 2. Contention of the petitioner is that by virtue of Ext.P1 the 1st respondent had modified the punishment of termination from service as compulsory retirement and it was ordered that the petitioner can be re-employed. In Ext.P4 the petitioner had mentioned that he had rejoined duty in the 1st respondent Corporation consequent to Ext.P1 order. Learned counsel for the petitioner contended that as ordered in Ext.P1, the petitioner was permitted to rejoin duty at Kottarakara Depot for one day and therefore the petitioner cannot be considered as compulsorily retired with effect from 14/11/1980. Therefore it is contended that the petitioner is eligible to get monthly pension considering him as a pensionable employee.
3. In the counter affidavit filed on behalf of 1st respondent it is contended that, by virtue of Ext.P1 order the termination from service of the petitioner was modified as compulsory retirement. The said order will make him eligible for the benefits due to him as on 14/11/1980, the date on which he was originally terminated, based on the modification as compulsory retirement. It is contended by learned Standing Counsel that once the termination of service was modified as compulsory retirement considering a mercy petition by taking a lenient view, the compulsory retirement will take effect from the date on which the employee was terminated, because the modification will relate back to the date of the original order. It is stated that the date of birth of the petitioner is on 18/01/1944 and he would have retired from service on attaining superannuation on completion of the age of 55 years, as on 31/01/1999, had he been continued in service without the order of termination issued on 14/11/1980. It is contended that the word used in Ext.P1 that ' He can be re-employed' can only be construed as an observation enabling the petitioner in getting re-employment, untrammelled by the original order of termination, dated 14/11/1980.
4. Learned counsel for the petitioner refuted the above contentions arguing that the date of birth as well as date of superannuation mentioned in the counter affidavit are not true and correct. Presumably, those dates mentioned in the counter affidavit are the dates born out from service records of the petitioner. It is pertinent to note that the petitioner has not raised any contention relating to any dispute with respect to date of birth contained in the service records. Nor there is any reply filed disputing the averments to that effect. Hence this court has justifiable reasons to accept the contention that, had the petitioner continued in service he would have retired on superannuation with effect from 31/01/1999. Learned counsel for the petitioner raised a further contention that by virtue of the observations contained in Ext.P1, the 2nd respondent had permitted the petitioner to rejoin duty for one day in the year 1999. However, the said fact is disputed in the counter affidavit. It is pertinent to note that Ext. P1 order itself was issued only on 13/10/1999 i.e, after 31/01/1999. Therefore, even assuming that the contention of the petitioner that he was permitted to rejoin duty for one day, it cannot be presumed that the petitioner is liable to be treated as compulsorily retired after the due date of his superannuation. This court is of the considered and firm opinion that, even assuming that he was permitted to rejoin for one day, that can only be by way of a mistake because a person who had already attained superannuation cannot be permitted to rejoin duty.
5. As contended by learned Standing Counsel for the respondents, the pension scheme was introduced in the 1st respondent Corporation only in the year 1984. Those who retired prior to 01/04/1984 are not in pensionable service. Since it is to be held that the petitioner is to be treated as compulsorily retired from service with effect from 14/11/1980, it is to be held that the petitioner is not entitled for any pensionary benefits.
Under the above mentioned circumstances this court do not find any merit in the challenges raised against Exts.P6 and P7. Therefore the writ petition fails and the same is hereby dismissed.
Sd/- C.K. ABDUL REHIM JUDGE MJL