P.M. Salim vs Kerala Water Authority
2023 Latest Caselaw 11154 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
    THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 27TH DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945

                 WP(C) NO. 13033 OF 2023

PETITIONER:

          P.M. SALIM
          AGED 60 YEARS
          S/O MEETHIAN, RESIDING AT PIRAMBILLYKUDY HOUSE,
          VENGOLA P.O, ARAKKAPADY, ERNAKULAM - 683556
          (HEAD OPERATOR, KWA RETIRED ON 31/5/2018)

          BY ADVS.
          Thomaskutty M.A.
          ASHA CHERIAN(K/000086/1994)


RESPONDENTS:

    1     KERALA WATER AUTHORITY
          REP. BY THE MANAGING DIRECTOR, JALA BHAVAN,
          VELLAYAMBALAM THIRUVANANTHAPURAM, PIN - 695010

    2     ASSISTANT EXECUTIVE ENGINEER
          P.H. SUB DIVISION OFFICE, KERALA WATER AUTHORITY,
          PERUMBAVOOR, ERNAKULAM DISTRICT, PIN - 683542

    3     EXECUTIVE ENGINEER
          P.H DIVISION OFFICE, KERALA WATER AUTHORITY,
          PERUMBAVOOR, ERNAKULAM DISTRICT, PIN - 683542

    4     SUPERINTENDING ENGINEER
          P.H. CIRCLE OFFICE, KERALA WATER AUTHORITY, KOCHI,
          ERNAKULAM DISTRICT, PIN - 682016


          SRI. P M JOHNY, SC FOR KWA

     THIS WRIT PETITION (CIVIL) HAVING COME UP            FOR
ADMISSION ON 27.10.2023, THE COURT ON THE SAME            DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.13033 of 2023

                                   2




                               JUDGMENT

The petitioner entered into service of the Kerala Water Authority

on 1.8.1987 as an Operator on a daily wage basis. He states that his

service was later regularised, and regular pay scale was granted to him

with retrospective effect from the initial date of appointment, as is

evident from Ext.P1 order. He states that on the cover of Ext.P1, all

service benefits, including Time Bound Higher Grade and Pay Revision

benefits, were granted to the petitioner, counting his service from the

initial date of appointment, ie., 1.8.1987. He states that after rendering

service for more than 3 decades, he attained superannuation on

31.5.2018 while functioning as Head Operator.

2. The petitioner asserts that after about 2 years of his

retirement, the regularisation of the service of the petitioner from

1.8.1987 was modified as 1.1.1988, and service benefits such as pay,

increment, grade promotion, pay revision, etc., granted to the petitioner

with effect from 1.8.1987 was reduced to his disadvantage by Ext.P3

order. After the issuance of Ext.P3, the petitioner is being disbursed

reduced pay, monthly pension, and pensionary benefits. He contends

that the benefits of regularisation, which was granted to the petitioner

more than three decades back, could not have been withdrawn on the W.P.(C) No.13033 of 2023

strength of Exts.P3 and P4 orders. He asserts that though Ext.P5

representation was submitted, the same was rejected by Ext.P7 order,

ordering the petitioner to pay back excess amount which was disbursed

to him from his gratuity. It is the case of the petitioner that the action

taken by the respondents cannot be sustained under law. He would

contend that persons similarly placed as the petitioner had approached

this Court, and after considering identical issues, a learned Single Judge

of this Court by Ext.P10 judgment had quashed the orders and directed

the respondents to disburse the entire retirement benefits reckoning the

earlier daily wage service. The petitioner asserts that the petitioner is

also entitled to similar orders. It is on these assertions that this Writ

petition is filed seeking the following reliefs:

i) To issue a writ of certiorari calling for the records leading to Exhibits P3 order and quash the same.

ii) To issue a writ of mandamus or any other writ, order or direction directing the respondents to restore the pay and other service benefits already granted to the petitioner while in service from 1.8.1987 upto his retirement, but which was reduced after his retirement by Exhibit P3 order.

iii) Or in the alternative issue a writ of mandamus or any other writ, order or direction directing the 1st respondent to re-consider and pass orders on Exhibit P5 representation of the petitioner in the light of Exhibits P1, P8 and P9 orders and P10 judgment within a time limit fixed by this Honourable Court, with notice to the petitioner.

iv) To issue a writ of mandamus or other appropriate writ, direction or order directing the respondents to sanction and disburse W.P.(C) No.13033 of 2023

Pension, DCRG and Commuted Value of Pension to the petitioner, treating his Average Emoluments as Rs.69,800/- and also reckoning his qualifying service as 31 years.

3. A counter affidavit has been filed by the respondents,

controverting the contentions of the petitioner. It is asserted that during

the final audit of the service book by the Accounts Officer, objection was

raised on the reckoning of earlier service of the petitioner on a daily

wage basis for Time Bound Higher Grades as Daily Wage service is

excluded from all service benefits. It was on account of the same that

his service benefits were revised, and orders were issued to recover a

sum of Rs.84,025/- being the excess pay drawn by the petitioner.

4. I have considered the submissions advanced.

5. From the records made available before this Court, I find

that by Ext.P1 order, the initial appointment of the petitioner on a Daily

wage basis was regularised, and he was granted pay on a Scale of Pay

basis. I find that the benefits due to the petitioner were granted to him

more than three decades back. The same was revised by Exts.P3 and P4

orders in the year 2020 that too after two years of his retirement.

6. In State of Punjab v. Rafiq Masih (White Washer)

[(2015) 4 SCC 334], the Apex Court had occasion to postulate the

situations of hardship that would govern employees on the issue of W.P.(C) No.13033 of 2023

recovery, where payments have mistakenly been made by the employer,

in excess of his entitlement. After balancing the conflicting claims and

the hardship that is likely to be caused, the Hon'ble Supreme Court had

summarised the situations wherein recovery of the amounts by the

employers would be impermissible under law. It was held as follows in

paragraph No. 18 of the judgment.

18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.

W.P.(C) No.13033 of 2023

7. There is no dispute that the petitioner falls in the lower rung

of the service and the recovery is being effected for excess payment

made initially about two decades back and thereafter. This is not a case

wherein the petitioner had knowledge that the payment received was in

excess of what was due. There is no case that there was any

misrepresentation or fraud on the part of the petitioner. As held by the

Apex Court, when payments have been made for a long duration of time,

the logic of recovery of the excess amount paid would be iniquitous,

arbitrary, violative of Article 14 of the Constitution of India. There

cannot be any doubt that it would be next to impossible for a person

such as the petitioner to bear the financial burden of a refund of

payment received wrongfully for a long span of time as he would have

spent the emoluments that he would have received for the upkeep of his

family under the bonafide belief that he is entitled to the said amount.

In that view of the matter, recovery of amounts ordered as per Ext.P3 at

this point of time after the petitioner has retired from service would

result in extremely harsh consequences.

8. In that view of the matter, I am of the considered opinion

that the petitioner is entitled to succeed. Exts.P3 and P4 will stand

quashed. There will be a direction to the respondents to restore the pay

and other service benefits already granted to the petitioner while in W.P.(C) No.13033 of 2023

service on and from 1.8.1987 up to his retirement. The respondents

shall rework for sanctioning and disbursing the Pension, DCRG, and

Commuted Value of Pension on the basis of the actual last drawn pay of

the petitioner without adverting to Exts.P3 and P4. Needful shall be

done within a period of three months.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE IAP W.P.(C) No.13033 of 2023

APPENDIX OF WP(C) 13033/2023

PETITIONER'S EXHIBITS:

Exhibit P1 TRUE COPY OF THE ORDER NO.E1-93/87 DATED 18/2/1991 OF THE 3RD RESPONDENT EXECUTIVE ENGINEER

Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF THE PETITIONER

Exhibit P3 TRUE COPY OF THE ORDER DATED 4/4/2020 OF THE 2ND RESPONDENT ASSISTANT EXECUTIVE ENGINEER

Exhibit P4 TRUE COPY OF THE GRATUITY PAYMENT ORDER NO.

KWA/AO (PEN)/PEN:9734/COM: (NON MEDICAL)/8783 DATED 22/9/2020 IN RESPECT OF THE PETITIONER

Exhibit P5 TRUE COPY OF THE REPRESENTATION DATED 19/11/2020 OF THE PETITIONER SENT TO THE 1ST RESPONDENT

Exhibit P6 TRUE COPY OF THE JUDGMENT DATED 3/2/2021 IN WP(C) NO.2724/2021 OF THIS HONOURABLE COURT

Exhibit P7 TRUE COPY OF THE ORDER NO.14131/E5/2021/KWA DATED 27/12/2021 OF THE 1ST RESPONDENT

Exhibit P8 TRUE COPY OF GOVERNMENT ORDER G.O.(P) NO.

10/2021/WRD DATED 31/3/2021

Exhibit P9 TRUE COPY OF GOVERNMENT LETTER NO.

WSB3/7/2022 WRD DATED 12/4/2022

Exhibit P10 TRUE COPY OF THE COMMON JUDGMENT OF THIS HONOURABLE COURT DATED 26/2/2021 IN W P(C) NO.8670/2020 W.P.(C) No.13033 of 2023

Exhibit P11 TRUE COPY OF PROCEEDINGS DATED 18.02.1991 OF THE EXECUTIVE ENGINEER, P.H. DIVISION, PERUMBAVOOR.

Exhibit P12 TRUE COPY OF THE ORDER NO.17337/F3/2018/KWA DATED 26.07.2023 OF THE 1ST RESPONDENT.

RESPONDENTS' EXHIBITS:

Exhibit- R1(a) TRUE COPY OF THE ORDER NO.E1/93/87, DATED 18/2/1991, ISSUED BY THE EXECUTIVE ENGINEER, PH DIVISION, PERUMBAVOOR.

Exhibit-R1(b) TRUE COPY OF THE ORDER NO.E1-5/82, DATED 31/12/1995, THE EXECUTIVE ENGINEER, PH DIVISION, PERUMBAVOOR.

Exhibit- R1(c) TRUE COPY OF THE WRITTEN CONSENT OF THE PETITIONER DATED 18/10/16, 1/3/12 AND 12/9/2007