Abdul Nazar.K v. The Kerala State Electricity Board Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 06TH DAY OF DECEMBER 2018 / 15TH AGRAHAYANA, 1940** ## **WA.No. 1866 of 2018** **JUDGMENT IN WP(C) 16373/2015 of HIGH COURT OF KERALA DATED 4.1.2018** ## **APPELLANTS/RESPONDENTS:** - **1 THE KERALA STATE ELECTRICITY BOARD LTD. VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM -695 004, REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR.** **2 THE CHIEF INTERNAL AUDITOR, OFFICE OF THE CHIEF INTERNAL AUDITOR, KERALA STATE ELECTRICITY BOARD LTD., VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695004.** - **3 THE DEPUTY CHIEF ENGINEER, TRANSMISSION CIRCLE, 110 KV SUB STATION COMPOUND, KERALA STATE ELECTRICITY BOARD LTD., MALAPPURAM-676509.** - **4 THE EXECUTIVE ENGINEER, TRANSMISSION CIRCLE, 110 KV SUB STATION COMPOUND, KERALA STATE ELECTRICITY BOARD LTD., MALAPPURAM-676509.** **BY ADV. SRI.GEORGEKUTTY MATHEW, SC, KSEB** W.A. No.1866 of 2018 -2- ## **RESPONDENT/PETITIONER:** **ABDUL NAZAR.K SUPERINTENDENT, TRANSMISSION CIRCLE, KERALA STATE ELECTRICITY BOARD LTD., MALAPPURAM, RESIDING AT KALITHODI HOUSE, MANKADAPPALLIPPURAM, MALAPPURAM -679 324.** **BY ADV. SRI.M.P.PRAKASH** ## **OTHER PRESENT:** **SRI RAJU JOSEPH SR ADV FOR APPELLANTS.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06.12.2018,** **THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.A. No.1866 of 2018 -3- ## **JUDGMENT** ## **C.T.Ravikumar, J.** This writ appeal is directed against the judgment of a learned Single Judge in W.P.(C) No.16373 of 2015. The respondents therein are the appellants and the petitioner therein is the respondent. The respondent herein is working as Superintendent under the Kerala State Electricity Board (for short “KSEB”). He filed the writ petition challenging Ext.P8 and Ext.P11 orders, by which the benefit of weightage given to him in the matter of pay fixation, taking into account his aided school service, was withdrawn and his request to restore the same was rejected. The learned Single Judge after considering the rival contentions, allowed the writ petition. Ext.P9 (sic. Ext.P8) and Ext.P11 were set aside and a declaration was made to the effect that the aided school service rendered by the writ petitioner/the W.A. No.1866 of 2018 -4- respondent herein followed by Board service is liable to be reckoned towards weightage as well as for pension, in view of the peculiar circumstances obtained in the writ petition. Consequently, the respondents therein/the petitioners herein were directed to restore the pay of the petitioner and grant him all consequential benefits within the time stipulated therein. It is in the said circumstances that the respondents therein filed the captioned writ appeal. 2. The basic facts required for consideration of the appeal are as follows:- Prior to the commencement of his career under the KSEB, the writ petitioner rendered aided school service as Upper Primary School Assistant from 15.7.1985 to 8.1.1996. Ext.P9, which is the service book of the petitioner, would reveal that upon commencement of service under the KSEB, his pay was fixed reckoning the aided school service and W.A. No.1866 of 2018 -5- later, it was cancelled on the ground that it was wrongly granted. Consequently, when steps were taken to reduce his pay and also to effect recovery of excessively paid amount, he submitted Ext.P10 representation before the Chairman of the Board. Essentially, he contended that he is entitled to get reckoned his aided school service preceding his service in the KSEB, not only for the purpose of pension, but also towards weightage. The said representation was rejected as per Ext.P11 order, holding that the contention of the writ petitioner that the amounts received in excess are not liable to be recovered, cannot be sustained on the ground that while receiving the benefits, he gave declaration in writing to the effect that in case of erroneous fixation, the amount received in excess would be refunded. 3. The fact that the respondent/the writ petitioner had rendered aided school service from 15.7.1985 to W.A. No.1866 of 2018 -6- 8.1.1996 is not in dispute. It is also not in dispute that the said service is reckonable for pension as qualifying service. 4. The learned Senior Counsel appearing for the appellants submitted that going by Exts.P1 and P5, the said service could not be reckoned for the purpose of granting weightage. It is the further submission that the petitioner had also understood the impermissibility created by the said circulars for reckoning his aided school service towards weightage. According to the Senior Counsel, but for such realisation, he would not have prayed for a declaration that his aided school service followed by Board service without any break and reckoned for pension, is liable to be reckoned as qualifying service for weightage under Ext.P5. That apart, it is contended by the learned Senior Counsel that a scanning of the impugned judgment would reveal that virtually the learned Single Judge had interfered with Exts.P8 and P11 W.A. No.1866 of 2018 -7- holding that peculiar circumstances are obtained in this case and therefore, in the light of the decision of the Apex Court in **State of Punjab v. Rafiq Masih (White Washer) [2015 (1)** **KLT 429 (SC)]** , the appellants could not have effected recovery from the petitioner who is working in a Group-C Post. It is contended that in the facts and circumstances of the case and taking note of the fact that the writ petitioner himself had given undertaking before receiving the benefits flowing from the pay revision, the learned Single Judge ought to have applied the dictum laid down by the Hon'ble Apex Court in **High Court of Punjab and Haryana v. Jagdev Singh [(2016) 14 SCC 267]** instead of applying the decision in Rafiq Mashi's case. 5. The learned counsel appearing for the respondent/the writ petitioner in a bid to sustain the impugned judgment contended that as the writ W.A. No.1866 of 2018 -8- petitioner/respondent herein belongs to Group-C post and the excess amount was paid not due to any misrepresentation from his part, the learned Single Judge was perfectly justified in relying on the decision in _Rafiq Masih_ 's case (supra) to restrain the respondent therein/ the petitioner herein from effecting recovery. 6. In the context of the rival contentions, it is only appropriate to refer to the situations summarized by the Honourable Apex Court, which would make recovery by employer impermissible in law. The situations are as follows:- “(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five W.A. No.1866 of 2018 -9- 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 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. " 7. The question is whether the decision of the Apex Court in _Rafiq Masih_ 's case should be understood as having laid down a preposition that under all circumstances where an employee was given excess payment, it would be impermissible to effect recovery of such excessively paid amount. The answer is very much available in _Rafiq Masih_ 's case itself. A bare reading of the said decision would reveal that the Honourable Apex Court had not laid down any such proposition. When recovery of payment mistakenly made to W.A. No.1866 of 2018 -10- an employee, is sought to be effected, certain aspects have to be taken into consideration in the light of the decision therein. The Apex Court held thus:- “An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount." Evidently, the Honourable Apex Court had only enunciated certain circumstances wherein such recovery would be impermissible in law. The said decision is to be understood in the light of the subsequent decision of the Apex Court rendered in _Jagdev Singh_ 's case, which was rendered after extracting the situations specifically made mention in paragraph 12 of _Rafiq Masih_ 's case. In paragraph 11 of _Jagdev Singh_ 's case, the Apex Court held:- “11. The principle enunciated in proposition (ii) above W.A. No.1866 of 2018 -11- cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking. In such circumstances, we are of the considered view that the question whether the impugned judgment invites interference depends upon consideration of the aforesaid aspects.” 8. We have taken note of the aforesaid decisions of the Apex Court to conclude that no inviolable position was laid down by the Apex Court to the effect that excess payment made to an employee shall not be recovered under any circumstance. We will deal with this issue a little later. The learned counsel for the respondent/writ petitioner initially attempted to canvass the position that in the light of Ext.P1, the petitioner is entitled to reckon his aided school service from 15.7.1985 to 8.1.1996 followed by the service W.A. No.1866 of 2018 -12- in the KSEB for the purpose of weightage. The learned counsel drew our attention to Clause (vii) of V carrying the caption: “V. Service that will count for weightage. (vii) Government service followed by the Board service without break will be counted for the purpose of computing qualifying service for weightage. In case of doubt regarding reckoning of the service, the eligibility of service counted for weightage will be decided by the Financial Adviser and Chief Accounts Officer as per the B.O.Estt.IV/16033/87 dt. 25.7.89 and B.O.424/92 Estt.IV/1960/91 dt.12.3.92.” 9. Evidently, the attempt on the part of the petitioner is that the aided school service rendered by him, for the specific pleadings raised by him in paragraph 11 of the original petition, should be treated as Government service for the purpose of Ext.P1. A perusal of his pleadings in the original petition, more particularly in paragraph 11 would reveal that, according to him, besides the difference in the W.A. No.1866 of 2018 -13- method of appointment, there is practically no difference at all between aided school service and the Government school service. It is his contention that both categories of teachers are imparting instructions and practically, there is no difference in their conditions of service and he gives more emphasis to the effect that the pay master as regards both the categories is none other than the Government. It is the further contention of the learned counsel for the writ petitioner that the subject of reckoning of such Government service preceding the service in KSEB is governed by memorandum of settlement, Board orders and circulars. Ext.P1 is in fact a Circular No.1- Long Term Settlement, 1993. It is further submitted that the same was followed in respect of the subsequent pay revisions as well. We have already adverted to Clause (vii) of Clause V of Ext.P1. Going by the same, only the Government service followed by Board W.A. No.1866 of 2018 -14- service without break would be counted for the purpose of computing qualifying service for weightage. Essentially, it is a circular based on long term settlement which permits only reckoning of the Government service followed by Board service, without break for the purpose of weightage. Therefore, the question is when such a circular having financial implication in unambiguous terms ordered to reckon only Government service followed by Board service without break for the aforesaid purpose, whether it is permissible to expand the scope of the same by interpreting that under certain circumstances, the aided school service must also be taken as Government service for the purpose of Ext.P1. There cannot be any doubt with respect to the position that the teachers in Government schools and the teachers in aided school service are governed by separate set of rules. At no stretch of imagination one could say that W.A. No.1866 of 2018 -15- an aided school teacher is a Government School teacher. Merely because the teachers in Government school as also in aided school are imparting instructions and in respect of both the categories, the pay master is Government, they cannot be taken as reasons to hold that the service rendered in aided school must be taken as Government service. When the relevant Circular granting benefits of Government service preceding the Board service is issued for a particular purpose, we have no hesitation to hold that the scope of such an order, having financial implication, cannot be expanded unmindful of its consequences. The various contentions raised by the petitioner in paragraph 11, made in a bid to the services of aided school service and compare Government school service, did not persuade us to hold that the aided school service should be treated as Government service for the purpose of Ext.P1, in the matter of reckoning W.A. No.1866 of 2018 -16- it as qualifying service for weightage. The fact that it is being reckoned for the purpose of granting pensionary benefits, cannot be a reason for holding that, it should also be taken as qualifying service for the purpose of weightage, so long as Ext.P1 is very specific as to which category of service, which is not a service under KSEB, should be reckoned for the purpose of weightage. In the said circumstances, we are of the view that, the petitioner cannot rely on Exts.P2 and P3 to canvass the position that the aided school service rendered by him should be reckoned in the light of Ext.P1. 10. The learned counsel appearing for the writ petitioner further contended that since the question of granting of weightage for service rendered outside the KSEB is governed by settlement, the undertaking given by the petitioner at the time of receipt of benefits going from pay W.A. No.1866 of 2018 -17- revision cannot be worked out detrimental to the interest of the petitioner. It is his contention that insisting to give such an undertaking tantamount to undue influence. The term unconscionable must mean irreconcilable with what is right or reasonable. Pursuant to an order passed by this Court on 1.11.2018, the appellants produced Annexure 'A to D', which are the declaration carrying the undertakings given by the writ petitioner at the time of receiving the benefits flowing from different pay revisions to the effect that any amount drawn/received by him in excess due to wrong fixation of pay would be repaid if found later in audit or otherwise. The writ petitioner did not dispute the execution of Annexures - 'A' to 'D' carrying such undertaking. 11. As noticed herein-before his contention is that insisting for giving such undertaking is unconscionable and according to him, insisting for the same would amount to W.A. No.1866 of 2018 -18- taking an undue advantage of unequal bargaining. To buttress the said point, the petitioner placed reliance on a Division Bench decision of this Court in **Malabar Mar Thoma Syrian Christian Evangelistic Association v. Lally Mathew [2009 (2) KLT 221]** , rendered after referring to the decision of the Honourable Apex Court in **Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly [(1986) 3 SCC 156]** and a later decision of the Apex Court in **Delhi Transport Corporation v. D.T.C.Mazdoor Congress [1991 Supp (1) SCC 600]** . In _Central Inland Water Transport Corporation's case (supra)_ , the Hon'ble Apex Court was considering the validity of a clause which empowered the management to terminate the services of its employee by giving three month's notice. Evidently, as regards the employee, it was Hobson's choice as without giving such an undertaking, he would not have been W.A. No.1866 of 2018 -19- inducted into the service of the management. Evidently, while examining its validity, the Apex Court held that it is nothing but taking advantage of the unequal bargaining power and in such circumstances, it amounts to exertion of undue influence. In _Delhi Transport Corporation_ 's case also, the Apex Court was dealing with a similar condition in the Service Regulations of Delhi Transport Corporation, enabling the Corporation to terminate the service of a permanent employee on completion of a specific period of appointment, after giving one month's notice. 12. In the case on hand, pursuant to pay revision orders for getting the benefit of pay revision, the writ petitioner was required only to give an undertaking that in case of erroneous fixation of the said benefit, if it is detected in the audit or otherwise, he would refund the excessively and erroneously obtained amount. We are at a lost to W.A. No.1866 of 2018 -20- understand how the petitioner could describe such a situation as unconscionable. Insisting to give an undertaking as a condition to disburse the pay revision benefits that in case of erroneous fixation of the benefits, the amount received in excess would be refunded, cannot by any stretch of imagination be said to be unconscionable or as an action of exertion of undue influence. There cannot be any doubt with respect to the position that in any public service, the public servants are receiving the public money as salary or towards arrears of salary pursuant to pay revisions. In such circumstances, the public money cannot simply be dolled out and when a condition is imposed to give an undertaking that pay if received in excess due to wrong fixation, would be refunded can only be construed as a condition imposed in public interest and at any rate, that cannot be described as an unconscionable action. If what is granted pursuant to the W.A. No.1866 of 2018 -21- pay revision is the amount to which one is legally entitled to, the execution of the undertaking in writing, would have no consequence at all. It would take effect only if the person concerned received any excess amount owing to erroneous fixation. We are of the view that in a case where the recipient of such a benefit is fully aware of the fact that he is actually receiving excess payment owing to a mistake, then that person cannot be permitted to take a contention that he is not liable to refund the same. We are fortified in our view by a decision of the Honourable Apex Court in **Syed Abdul Qadir and others v. State of Bihar and others [2009 (3) SCC 475]** . In the said decision, the Apex Court held that if the employee got knowledge that he was getting excess payment by mistake, such a person cannot be heard to contend that the recovery is barred. Our view is further fortified by the decision of the Apex Court in _Jagdev Singh_ 's case, referred W.A. No.1866 of 2018 -22- herein-before. Paragraph 11 therein extracted herein-before would reveal that in a case where the officer concerned, in the first instance was clearly put on notice that any payment found to have been made in excess would be required to be refunded and if the officer concerned had given an undertaking in writing in that regard, while opting for the revised pay scale, in such circumstances, he cannot be permitted to contend that he is not liable to refund the amount. True that in _Jagdev's_ case, proposition (ii) in _Rafiq Masih's_ case was under consideration as it was recovered from a retired employer. We are of the view that in the light of the decision in S _yed Abdul Qadir'_ s case, the dictum in _Jagdev's_ case that if the person concerned was clearly put on notice that he would be required to refund amount received in excess and thereafter if he himself gives such an undertaking while opting for the revised pay scale, he cannot W.A. No.1866 of 2018 -23- be permitted to take shelter under _Rafiq Masih'_ s case to resist recovery. 13. In this contextual situation of the case, we are of the considered view that besides paragraph 12 of the decision in _Rafiq Masih's_ case, paragraphs 6 and 7 therein also assume relevance and they read thus:- “6. In view of the conclusions extracted hereinabove, it will be our endeavour, to lay down the parameters of fact situations, wherein employees, who are beneficiaries of wrongful monetary gains at the hands of the employer, may not be compelled to refund the same. In our considered view, the instant benefit cannot extend to an employee merely on account of the fact, that he was not an accessory to the mistake committed by the employer; or merely because the employee did not furnish any factually incorrect information, on the basis whereof the employer committed the mistake of paying the employee more than what was rightfully due to him; or for that matter, merely because the excessive payment was made to the employee, in absence of any fraud or misrepresentation at the behest of the employee. "7. Having examined a number of judgments rendered by this W.A. No.1866 of 2018 -24- Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Art.142 of the Constitution of India. Repeated exercise of such power, “for doing complete justice in any cause” would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court.” 14. We are of the considered view that in the light of the decision in _Syed Abdul Qadir_ 's case and also in view of the decision in _Rafiq Masih's_ case, where the Honourable Apex Court made it clear that it would be impossible to visualise and encapsulate all situations of hardship on the issue of recovery where payments have mistakenly been W.A. No.1866 of 2018 -25- made. One cannot be permitted to contend that in all situations where an employee was excessively paid by mistake, there would not be any recovery at all. 15. We will now consider the question whether the judgment of the learned Single Judge, in the light of the position of law settled as mentioned hereinbefore, invites interference. A close scrutiny of the impugned judgment would reveal the reasons that constrained the learned Single Judge to hold that no recovery could be effected from the petitioner. We have already taken note of the conclusion of the learned Single Judge that if weightage is permissible based on service in Government Schools, there would not be no reason to deny the benefit in respect of teachers who rendered aided school service. We have already found that the said finding cannot be sustained. In this context, it is also to be noted that the petitioner had taken up such a W.A. No.1866 of 2018 -26- contention in the light of Clause (vii) in Ext.P1. There can be no dispute with respect to the position that going by Clause (vii) therein, under the caption 'service that will count for weightage' Government service followed by Board service without break, could be counted for the purpose of weightage. The petitioner was fully aware of the fact that he never had rendered any Government service prior to his entry in the service of KSEB. He was fully aware of the fact that he had only aided school service which is certainly different and distinct from Government service. Even then, the appellants had not chosen to challenge the aforesaid Clause (vii) of Ext.P1 which confined the benefit of reckoning service followed by Board service only in respect of service in Government department. At any rate, it is not conferring such benefit to persons having aided school service prior to their entry in Board's service. When there is W.A. No.1866 of 2018 -27- absolutely no challenge against the same, solely because of the fact that in respect of aided school teachers, Government is the pay master, cannot be taken as a criteria to hold that Ext.P1 is applicable even in a case where an employee in the KSEB was having aided school service prior to his entry in Board service. We have no hesitation to hold that giving such an interpretation would amount to expanding the scope of applicability of Ext.P1, having financial implication. 16. In the said circumstances, the question is whether the learned Single Judge is justified in holding that the case on hand should be treated as a special case and without treating as a precedent, the benefit should be given to the petitioner and his pay should be restored. The pleadings in the writ petition as also in this appeal and the relief sought for and his representations before the Authorities would go to show that the petitioner was fully aware of the fact that W.A. No.1866 of 2018 -28- without interpreting Clause (vii) in Ext.P1, the service rendered by him in aided school followed by Board service would not be reckoned as qualifying service for the purpose of weightage. In such circumstances, it is also relevant to note that even after having full knowledge that such service is reckonable only for pensionary benefits, he represented before the authorities that he is also entitled to get such service reckoned for weightage. Thereafter, in the writ petition, he has specifically sought for a declaration that aided school service followed by Board service without any break is liable to be reckoned for computing qualifying service for weightage under Ext.P5. It is also to be noted that he sought for such a declaration in view of Ext.P1 to Ext.P3. We have already adverted to Ext.P1 and held that Ext.P1 cannot be taken as an order or a circular permitting reckoning of aided school service followed by Board service W.A. No.1866 of 2018 -29- as qualifying service for the purpose of weightage. The discussion as above would reveal that the petitioner cannot be said to be absolutely unaware of the fact that he was receiving excess payment due to a mistake. Not only that the pleadings would reveal that he was also instrumental to such a decision as he himself represented before the Authorities that he is entitled to get reckoned the aided school service rendered prior to the entry in Board service as qualifying service for weightage. The power to pass an order _dehoring_ the position of law or provision of law is not available to this Court under Article 226 of the Constitution of India. Evidently, to do substantial justice between the parties in a given case power is available with the Honourable Apex Court under Article 142 of the Constitution of India of India. As long as such a power is not available to this Court, this Court would not be justified in issuing a direction as has W.A. No.1866 of 2018 -30- been done in this case, viz; in directing the appellants to treat it as a special case and without treating it as a precedent, to restore the benefit of a mistake, especially when he was enjoying the benefit due to a mistake, fully aware that it was due to a mistake that he was getting the same. 17. The long and short of the discussion is that in the light of the decision of the Apex Court in _Syed Abdul Qadir_ 's case, in _Jagdev's_ case and also in the light of the decision in _Rafiq Masih_ 's case, the petitioner is not entitled to canvass that he is not liable to refund the amount received in excess and that it cannot be recovered. The petitioner is not entitled to get reckoned his aided school service followed by the Board service as qualifying service for weightage. When once it is found that he is not entitled to get such service reckoned as qualifying service for weightage, the inevitable W.A. No.1866 of 2018 -31- consequence must follow, in the circumstances explained hereinbefore. In the said circumstances, we are of the view that the appellants must succeed in this appeal. Consequently, this writ appeal is allowed. The impugned judgement passed by the learned Single Judge in W.P.(C) No.16373 of 2015 is set aside and the writ petition stands dismissed. **Sd/C.T.RAVIKUMAR JUDGE** **sd/V.G.ARUN JUDGE** Scl/07.12.18