Dismissed

K.R.Viswanathan v. Chief Security Commissioner

Kerala HC12 Sept 2018WP(C)/17600/2018

Case brief

AI extract

What is this about?

The High Court of Kerala rejected a writ petition seeking ex-gratia payment for holidays not physically worked. The court held that the rules strictly required actual duty performance on holidays for eligibility and found no provision for deemed duty or payment during periods of non-service.

What did the court decide?

Writ petition dismissed as petitioner has no case for ex-gratia payment on days he did not physically work.

K.R.Viswanathan Vs Chief Security Commissioner — Labour and Industrial Disputes | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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WEDNESDAY,THE 12TH DAY OF SEPTEMBER 2018 / 21ST BHADRA, 1940

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WP(C).No. 17600 of 2018

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PETITIONER/S:

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K.R.VISWANATHAN

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S/O. RAGHAVAN NAIR, KUREETHAZHIKAM, NEDUMPANA P.O., KANNANALLOOR (VIA), KOLLAM DISTRICT - 691 576.

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BY ADVS. SRI.SHABU SREEDHARAN SRI. P.R.VIBHU SRI. NIDHI RAVINDRAN SRI. M. YOHANNAN SRI. THILAKAN SMT. RESHMA ABDUL RASHEED

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RESPONDENT/S:

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CHIEF SECURITY COMMISSIONER RAILWAY PROTECTION FORCE, SOUTHERN RAILWAY, CHENNAI - 600084.

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BY ADV. SRI.P.K.SAJEEV, SC, RAILWAYS

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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Petitioner challenges the

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rejection of his request for ex-gratia payment in Ext P6 order.

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2. Petitioner was removed from

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WP(C).No. 17600 of 2018

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service while he was working as a Head Constable in Railway Protection Force. The

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removal was set aside direcing reinstatement with back wages by judgment in W.P.(C) No.16114/2005. It is stated that though orders were issued re-instating him, he could not join duty, due to ill-health. He retired from service on 30.11.2014. It is stated that the respondents made certain payments based on the judgment in the writ petition and also after he filed Contempt of Court Case.

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3. Thereafter petitioner again approached this Court in W.P.(C) No.17483/2016 alleging non-payment of entire dues to him and benefits including ex-gratia payment. Respondents filed a statement that they have made all payments due to him. Therefore the writ petition was disposed of as per Ext.P2 judgment, giving

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liberty to petitioner to move the respondents in the event of any dispute

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WP(C).No. 17600 of 2018

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with respect to the quantum of terminal benefits he received. Thereafter petitioner submitted Ext.P3 representation before the Chief Security Commissioner requesting for ex-gratia payment and filed W.P.(C) No.34393/2017, which was disposed of by Ext.P4 judgment directing the respondent to consider his representation.

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4. Ext.P6 order was passed thereafter rejecting his request. Respondent found that ex-gratia payment or Holiday encashment would be admissible to an RPF staff only if he had performed duty and forgone his Holidays, Weekly Rests etc., due to exigency of service in case Compensatory Holiday/Rest in lieu was not given. The case of the petitioner is that he would have worked on Holidays, in case he was allowed to work during the period from 20.07.1991 to 30.11.2014 when he was out of service on account of disciplinary proceedings and removal of service. It is

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WP(C).No. 17600 of 2018

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pointed out that before 20.07.1991, he has worked during Holidays and therefore he

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should be given ex-gratia payment.

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5. Having heard the learned Counsel on

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either side, it is seen that the entitlement of petitioner for ex-gratia payment depends on the fulfilment of the conditions prescribed in the relevent rules/orders. Petitioner has not disputed the provisions relied on in Ext.P6 while considering his claim and has not produced any material to show that there are any other rules in force, though sufficient time was given.

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6. The provisions regarding ex-gratia

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payment as given in Ext P6 are the

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following :

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“Cash Compensation for

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holidays/Closed days-

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(a) In the exigencies of public service, RPF/RPSF personnel are required to perform duty even on gazetted holidays/closed days/restricted holidays/National Holidays/weekly rest days/other holidays.

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WP(C).No. 17600 of 2018

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Every effort should be made to grant compensatory holiday/rest in lieu of the holiday/rest foregone by the staff during the same week or within the next 30 days. It is only in emergent situation that weekly rest or compensatory rest/holiday for working on rest days or on gazetted holidays should be denied and the reasons therefore should be recorded by the Company Commanders/Officer-in-charge of the post. The permission to staff for leaving station on rest days should invariably be granted, if asked for. The Security Officer/Assistant Security Officer will personally ensure this and issue suitable instructions to the Company commanders/Post Incharge.

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(b) The cash compensation is payable for each day the personnel actually work on holidays for which it is not possible to grant compensatory off as per subrule(a) above.

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This matter is further clarified vide Railway Board's Circulars No.Rly.Brds.Lr.No.E(P&A)I-98/ALL/RPF/2 dated 30.10.98, No.E(P&A)II-79/HW/1RPF(b) dated 03.10.79, No.E(P&A)II-80/HW/2RPF dated 02.07.80, dated 12.01.81, No.E(P&A)II-82/ALL/1RPF(b) dated 17.06.82 & No.E(P&A)II-84/ALL/RPF-2 dated 06.08.85.”

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I do not find anything in the aforsaid provisions which provides for

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WP(C).No. 17600 of 2018

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payment of exgratia towards days on which one has not physically performed duty during Holidays. If at all the petitioner has worked on holidays before his removal from service, that cannot in any way entitle him to claim for treating him as having proformed duty during Holidays. There cannot be any deemed duty on all the subsequent holidays for the purpose of exgratia payment. Petitioner does not have a case that payment is denied for any day on which he physically worked. Therefore, I do not find any illegality in Ext.P6 order.

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Accordingly, this writ petition is

dismissed.

Sd/-

P.V.ASHA

JUDGE

WP(C).No. 17600 of 2018

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 THE TRUE COPY OF THE REPRESENTATION BEFORE THE DATED 14.09.2015.

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EXHIBIT P2 THE TRUE COPY OF THE JUDGMENT IN W.P.(C)NO. 17483/2016 DATED 23.08.2017.

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EXHIBIT P3 THE TRUE COPY OF THE REPRESENTATION BEFORE THE RESPONDENT ON 28.09.2017.

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EXHIBIT P4 THE TRUE COPY OF THE JUDGMENT IN W.P.(C)NO. 34393/2017 DATED 21.03.2018.

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EXHIBIT P5 THE TRUE COPY OF THE FORWARDING LETTER TO THE RESPONDENT DATED 05.04.2018.

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EXHIBIT P6 THE TRUE COPY OF THE PROCEEDINGS DATED 08.05.2018 OF THE RESPONDENT.

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EXHIBIT P7 THE TRUE COPY OF THE ORDER OF THE DIVISIONAL SECURITY COMMISSIONER THIRUVANANTHAPURAM DATED 07.08.2017.

K.R.Viswanathan v. Chief Security Commissioner

Case brief

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K.R.Viswanathan v. Chief Security Commissioner

Case brief

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