1. Retired employee challenges computation of retirement benefits reckoning service only from date of regularization. (Para 1 )
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2022 Supreme(Online)(Ker) 79591
IN THE HIGH COURT OF KERALA AT ERNAKULAM
V.G. Arun, J
Ajithkumar M – Appellant
Versus
Regional Cancer Centre Thiruvananthapuram – Respondent
WP(C) NO. 15425 OF 2021
Advocates:
For the Appellants/Petitioners: Gikku Jacob
For the Respondents: Athul Shaji, Venugopal V
For the Appellants/Petitioners: Gikku Jacob
For the Respondents: Athul Shaji, Venugopal V
The Court directed the respondents to consider and pass a reasoned order on the petitioner's representation regarding the reckoning of total service for retirement benefits, emphasizing that the primary authority must decide before a writ of mandamus is issued.
Headnote:(A) Retirement Benefits - Reckoning of Service - Calculation of benefits based on the date of regularization versus initial date of appointment - Petitioner challenging the exclusion of daily wage service for pensionary and leave surrender benefits. (Para 1)
(B) Writ of Mandamus - Exhaustion of Alternative Remedy - When a representation has been submitted to the competent authority, the Court may direct the authority to dispose of the representation with a reasoned order instead of granting direct relief. (Para 4)
Issues: Whether the petitioner is entitled to retirement benefits by reckoning his service from the initial date of appointment as a daily wage worker rather than from the date of regularization.
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Table of Contents
2. Petitioner argued executive order cannot apply retrospectively and discriminated against him; respondents submitted no counter. (Para 2 )
3. Court held primary authority must decide on representation before writ of mandamus can be issued. (Para 4 )
4. Without the primary authority deciding a pending representation, a writ of mandamus is inappropriate. (Para 4 )
5. Directed respondents to consider representation and pass reasoned order after hearing, within two months. (Para 4 )
6. Is a writ of mandamus appropriate when a representation is pending before the primary authority?
No. Without the primary authority taking a decision on the representation, it is inappropriate for the court to issue a writ of mandamus. (Para 4 )
7. Must the primary authority pass a reasoned order on a pending representation?
Yes. The authority must take up the representation and pass a reasoned order after affording an opportunity of hearing. (Para 4 )
8. What is the remedy when retirement benefits are computed only from the date of regularization?
The employee should first submit a representation to the authority; the court will not directly decide without the primary authority acting. (Para 1 , 2 , 4 )
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 6th day of April, 2022
The petitioner retired from the Regional Cancer Centre as Security Guard on 28.05.2018. The petitioner had initially joined service on 19.12.2001 as a daily waged worker and on completion of 10 years, his service was regularized vide Exhibit P8 Government Order dated 19.12.2011. Subsequently, the Government issued Exhibit P9 Order, declaring its policy as to regularization of services of temporary employees in Government, Grant-in-aid institutions etc.
This writ petition is filed challenging the Exhibit P11 Order, as per which petitioner’s retirement benefits are computed, reckoning his service only from the date of regularisation. The prayer is to disburse the benefits, reckoning petitioners service from the date of initial appointment and to release the earned leave surrender amount for an additional 36 days.
2. Learned Counsel for the petitioner contended that Exhibit P9 Government Order, regularising the services of temporary employees in Government and Grant-in-aid institutions etc, does not apply in the petitioners case. The calculation of retirement benefits is therefore flawed and is also violative of Art.14 of the Constitution of India as the petitioner is being discriminated against, in the matter of reckoning of service period. Moreover, Exhibit P9 is an executive order and can only be prospective, in the absence of an indication to the contrary. Therefore, the petitioner is entitled to retirement gratuity, based on his continuous service of 16 years and 5 months. In support of the contention, reliance on the decision in Netram Sahu v. State of Chattisgarh (2018 KHC 6211). As such, the petitioner is entitled for the money value leave of surrender for additional 36 days and minimum pension at the rate of Rs 20,000/- per month. Highlighting his grievances the petitioner has submitted Exts P14 representation.
3. Heard learned Government Pleader and learned Standing Counsel also.
4. The petitioner having submitted Ext.P14 representation requesting for release of retirement benefits, it is incumbent upon respondents 1 and 2 to pass appropriate orders there on. Without the primary authority taking a decision, it is inappropriate for this Court to issue a writ of mandamus.
In the result, the writ petition is ordered as under;
Respondents 1 and 2 shall take up Ext. P14 and pass a reasoned order therein, after affording an opportunity of hearing to the petitioner. The order, as directed, shall be passed within two months of receipt of a copy of this judgment.
