K.A.Hassan vs State Of Kerala
2022 Latest Caselaw 11168 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
   FRIDAY, THE 2ND DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944
                        WP(C) NO. 13256 OF 2022
PETITIONER:

          K.A.HASSAN,
          AGED 56 YEARS
          (METER INSPECTOR, KERALA WATER AUTHORITY, PH SECTION,
          KODUNGALLUR, THRISSUR, RETIRED ON 30/11/2021), RESIDING
          AT KAYAMKULAM HOUSE, KARUPADANNA P.O., THRISSUR
          DISTRICT-680670.
          BY ADV K.P.RAJEEVAN


RESPONDENTS:

    1     STATE OF KERALA,
          REPRESENTED BY ITS SECRETARY, WATER RESOURCES (WATER
          SUPPLY-C) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-
          695001.
    2     KERALA WATER AUTHORITY
          REPRESENTED BY THE MANAGING DIRECTOR, JALA BHAVAN,
          THIRUVANANTHAPURAM-695033.
    3     FINANCE MANAGER AND CHIEF ACCOUNTS OFFICER,
          KERALA WATER AUTHORITY, JALA BHAVAN,
          THIRUVANANTHAPURAM-695033.
    4     ACCOUNTS OFFICER (PENSION & PAY SLIP),
          KERALA WATER AUTHORITY, THIRUVANANTHAPURAM-695033.
    5     THE SUPERINTENDING ENGINEER,
          P.H. CIRCLE, KERALA WATER AUTHORITY, THRISSUR DISTRICT-
          680001.
    6     THE EXECUTIVE ENGINEER,
          PH DIVISION, IRINJALAKUDA, THRISSUR DISTRICT-680121.
    7     ASSISTANT EXECUTIVE ENGINEER,
          PH SUB DIVISION, MALA, THRISSUR DISTRICT-680732.
    8     THE ASSISTANT ENGINEER,
          PH DIVISION, KODUNGALLUR, THRISSUR DISTRICT-680664.


          BY SRI.P.M.JOHNY-SC
          BY SRI.V.K.SUNIL, SENIOR GOVERNMENT PLEADER
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.13256 OF 2022

                                            2




                                     JUDGMENT

Dated this the 2nd day of December, 2022

This writ petition is filed seeking the following

reliefs:

"i) Call for the records leading to this case and issue a writ of certiorari to quash Exhibits P6 and P7.

ii) Issue a writ of mandamus directing the respondents to sanction and disburse the amounts of Monthly Pension with arrears, DCRG and Commuted Value of Pension, leave surrender, interest on the amount of provident fund up to the date of payment and all other benefits to the petitioner with interest immediately."

2. Heard the learned counsel for the

petitioner, the learned Government Pleader as well

as the learned counsel appearing for the Kerala

Water Authority.

3. It is submitted by the learned counsel for

the petitioner that the petitioner retired from W.P.(C)No.13256 OF 2022

service as Meter Inspector from the Kerala Water

Authority on 30.11.2021. His retirement benefits

including PF closure amounts and gratuity were not

released to him. It is submitted that when the

petitioner approached the respondents seeking

release of the amounts, he was issued with Exhibit

P6 notice and later Exhibit P7 commutation stating

that there was an error in the grant of time bound

higher grade and fixation of pay, done in the pay

revision of the year 1992 onwards and that there is

accordingly a huge liability cast on the petitioner,

which has to be made good by him. It is submitted

that though gratuity amount of Rs.11,69,940/- was

admitted, no amount was paid on the ground that

there is overdrawal of salary by the petitioner which

is liable to be made good by him.

4. A counter affidavit has been placed on

record by respondents 2 to 8, wherein it is admitted W.P.(C)No.13256 OF 2022

that the petitioner retired from service on

30.11.2021. However it is stated that he was

selected through Employment Exchange and

appointed as Pump Operator on 20.07.1987 and

later regularized in service on 29.12.2005. It is

submitted that he was entitled to count the past

service only from 19.09.1991 and his past service

was erroneously counted from 20.07.1987. It is

submitted that 1st, 2nd, 3rd and 4th time bound higher

grades was erroneously sanctioned by counting his

service from 20.07.1987 instead of 19.09.1991 and

that the said amounts which are erroneously drawn

by the petitioner in excess are liable to be

calculated and refunded by the petitioner. It is

stated that the liability on account of wrong fixation

was assessed as Rs.16,29,999/- and since the

DCRG was less than the said amount, nothing was

paid. It is further stated in paragraph No.10 that W.P.(C)No.13256 OF 2022

the GPF closure application of the petitioner was

received in the Section on 06.02.2021 and

authorization for payment of Rs.9,30,484/- had

been issued on 15.02.2021. It is submitted that

due to revenue fund shortage with the Kerala Water

Authority, the closure amount was payable to the

petitioner only on 08.12.2021. It is further

submitted that no further amounts are due to be

payable to the petitioner.

5. A reply affidavit has also been placed on

record by the petitioner.

6. Having considered the contentions

advanced, I notice that the petitioner retired from

service on 30.11.2021 as a Meter Inspector. It is

clear from the pleadings on record that the

petitioner had not been informed of any error in the

fixation of his pay or the grade promotions granted

to him before the issuance of Exhibit P6 notice. The W.P.(C)No.13256 OF 2022

endorsements to Exhibit P6 would show that the

same was issued only in the month of December

2021 and Exhibit P7 pension payment order was

issued only on 22.02.2022. Therefore, it is clear

that till the date of retirement of the petitioner,

there was no proceedings issued to him, informing

him of any error in the fixation of his pay or

informing him that he has drawn any amounts in

excess. Even if such a notice had been issued, it is

clear that the error in fixation, dates back to the

pay fixation done in respect of the pay revision of

the year 1992 and that it was only long thereafter,

at the time of verification of the petitioner's pension

papers that the error was first noticed and

thereafter intimated to the petitioner after his

retirement.

7. In the above factual situation, I am of the

opinion that the specific directions and guidelines W.P.(C)No.13256 OF 2022

issued by the Apex Court in its decision in State Of

Punjab & Ors vs Rafiq Masih (White Washer)

[2015 (1) KLT 429 (SC)] squarely applies to the

instant case. I am of the clear opinion that no

liability can be inflicted against the petitioner on

account of a wrong fixation which has occurred

several years ago and where no notice has been

served, during the currency of the petitioner's

service.

In the above view of the matter, Exhibit P6

as well as the fixation of liability in Exhibit P7 is set

aside. There will be a direction to the respondents

to release the retirement benefits due to the

petitioner, including DCRG within a period of six

months from the date of receipt of a copy of this

judgment and taking note of the seniority in the

matter of retirement in the list maintained by the

Kerala Water Authority. The earned leave surrender W.P.(C)No.13256 OF 2022

amounts as well as the interest due on provident

fund for the period from 15.02.2021 to 08.12.2021

shall be calculated and disbursed to the petitioner

within a period of two months from the date of

receipt of a copy of this judgment.

Sd/-

ANU SIVARAMAN JUDGE SSK/02/12 W.P.(C)No.13256 OF 2022

APPENDIX PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF PAGE NUMBERS 1 AND 6 TO 8 OF THE SERVICE BOOK OF THE PETITIONER.

Exhibit P2 A TRUE COPY OF THE ORDER NO. KWA/JB/E5-

4168/96/VOL.III DATED 03/05/2006 ISSUED BY THE SENIOR SUPERINTENDENT.

Exhibit P3 A TRUE COPY OF ORDER NO. KWA/WSDN/CHN/A1-4500/07 VOL.II DATED 18/03/2014 ISSUED BY THE EXECUTIVE ENGINEER, W.S. DIVISION, KOCHI-18. Exhibit P4 A TRUE COPY OF ORDER NO. KWA/WSDN/CHN/A3-4500/07 VOL.II DATED 02/12/2014 ISSUED BY THE EXECUTIVE ENGINEER, W.S. DIVISION, KOCHI-18. Exhibit P5 A TRUE COPY OF COVERING PAGE, PAGE NUMBERS 1 TO 15, 29, 31, 33, 35 TO 37, 39, 43, 45 AND 47 OF THE PENSION BOOK OF THE PETITIONER WHICH WAS FORWARDED TO THE 4TH RESPONDENT BY THE 5TH RESPONDENT.

Exhibit P6 A TRUE COPY OF LETTER NO. KWA/AO (PAY SLIP & PENSION)/10718/9720/992 DATED 17/11/2021 SENT BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT. Exhibit P7 A TRUE COPY OF LETTER NO./ KWA/AO(PEN)/PEN:10718/COM (NON MEDICAL)/9720/377 DATED 22/02/2022 SENT BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT.

Exhibit P8 TRUE COPY OF THE GOVERNMENT ORDER NO.G.O.(P) NO.10/2021/WRD DATED 31/03/2021. Exhibit P9 TRUE COPY OF LETTER OF ENDORSEMENT NO.12798/E1/2021/KWA DATED 06/05/2022 ISSUED BY NISHA.B.V., SENIOR ADMINISTRATIVE OFFICER, KERALA WATER AUTHORITY WITH GOVERNMENT LETTER NO.WS-B37/2022-WRD DATED 12/04/2022 ISSUED BY THE ADDITIONAL CHIEF SECRETARY TO THE MANAGING DIRECTOR OF KERALA WATER AUTHORITY. Exhibit P10 TRUE COPY OF INTERIM ORDER DATED 27/10/2022 IN WPC.NO.12173/2022.

Exhibit P11 TRUE COPY OF SHORT NOTE IN 2014 KHC 3741 WITH REGARD TO THE DECISION OF THE HON'BLE SUPREME COURT OF INDIA IN RAM GULAM VS. STATE OF BIHAR & OTHERS.

 SSK                      //TRUE COPY//         PA TO JUDGE