Bonny Thomas and Others v. Cochin Port Trust and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** - **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941** ## **WP(C).No.11688 OF 2014(I)** ## **PETITIONERS:** - **1 BONNY THOMAS. S ASSISTANT ENGINEER (M), FINANCE DEPARTMENT, COCHIN PORT TRUST.** - **2 T.RADHAKRIHSNAN ASSISTANT ENGINEER (M), CHIEF MECHANICAL ENGINEERS' DEPARTMENT, COCHIN PORT TRUST.** - **3 T.D.GEORGE ASSISTANT ENGINEER (M), DEPUTY CONSERVATORS' DEPARTMENT, COCHIN PORT TRUST.** - **4 M.P.SASIKUMAR ASSISTANT ENGINEER, CHIEF ENGINEERS' DEPARTMENT, COCHIN PORT TRUST.** - **5 T.R.NARAYANAN ASSISTANT ENGINEER, CHIEF ENGINEERS' DEPARTMENT, COCHIN PORT TRUST.** - **6 P.V.HEERA ASSISTANT ENGINEER, CHIEF ENGINEERS' DEPARTMENT, COCHIN PORT TRUST.** - **7 K.KRISHNAN ASSISTANT ENGINEER, CHIEF ENGINEERS' DEPARTMENT, COCHIN PORT TRUST.** - **8 PAVITHRAN KUNIYIL ASSISTANT ENGINEER, CHIEF ENGINEERS' DEPARTMENT, COCHIN PORT TRUST.** - **BY ADV. SRI.S.MANU** 2 WP(C).No.11688 OF 2014 ## **RESPONDENTS:** - **1 COCHIN PORT TRUST REP. BY ITS SECRETARY, WILLINGDON ISLAND, KOCHI-682003.** - **2 THE CHAIRMAN COCHIN PORT TRUST, WILLINGDON ISLAND, KOCHI-682003.** - **3 THE SECRETARY COCHIN PORT TRUST, WILLINGDON ISLAND, KOCHI-682003.** - **4 THE CHIEF MECHANICAL ENGINEER COCHIN PORT TRUST, WILLINGDON ISLAND, KOCHI-682003.** - **5 THE CHIEF ENGINEER COCHIN PORT TRUST, WILLINGDON ISLAND, KOCHI-682003.** - **6 THE DEPUTY CONSERVATOR COCHIN PORT TRUST, WILLINGDON ISLAND, KOCHI-682003.** - **7 THE FINANCIAL ADVISOR AND CHIEF ACCOUNTS OFFICER COCHIN PORT TRUST, WILLINGDON ISLAND, KOCHI-682003.** ## **8 THE PRINCIPAL ACCOUNTANT GENERAL AUDIT KERALA, THIRUVANANTHAPURAM.** **R1-7 BY ADV. SRI.K.ANAND (SR.) R1-7 BY ADV. SRI.K.ANAND SR. R1-7 BY ADV. SMT.LATHA ANAND R1 BY ADV. SRI.K.I.MAYANKUTTY MATHER, SC, IA AMP AD R8 BY ADV. SRI.K.I.MAYANKUTTY MATHER, SC, IA & AD** ## **OTHER PRESENT:** ## **SRI.SUNIL KUMAR KURIAKOSE ,GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 WP(C).No.11688 OF 2014 ## **JUDGMENT** ## **Dated this the 10th day of December 2019** While petitioners were working as Junior Engineers in Cochin Port Trust, Ext P1 proposal was placed before the Board of Trustees for restructuring the Engineering Department in order to improve the efficiency of the Department and boost the morale of the employees by upgrading the posts of Junior Engineers in Class III as Assistant Engineer (Class II). By Resolution no.147 in Ext P2 the Board of Trustees on 23.04.2001 decided to upgrade certain posts of Junior Engineers in Civil Engineering Department, Mechanical Engineering Division, Electrical Engineering Division and Electronic Engineering Division as Assistant Engineer (Class II) in the pay scale of Rs.8600 -14600. Based on Ext P2 decision, Ext P3 and P4 orders were issued on 27.06.2001 upgrading the Junior Engineers including the petitioners who were working in Mechanical and Civil Departments as 4 WP(C).No.11688 OF 2014 Assistant Engineers in Rs.8600-14600 **,** subject to an undertaking that they would perform duties of the cadre post prior to their upgradation. It was ordered that the designation of the promotees shall be suffixed by (UG). At the time of upgradation. It is stated that though the petitioners were in Class III Cadre they were in receipt of basic pay more than the minimum of the Class II and the only financial benefit admissible for them was the benefit of fixation of pay in the higher scale. 2. It is stated that subsequent to that, on the basis of some demands made by the Employees Union, Ext P7 order was issued on 27.05.2005 In which it was ordered that officers posted against regular post of Assistant Engineers and discharging the functions and responsibilities of Sub Divisional Officer would be thereafter identified with the suffix (SDO). It was also ordered that the suffix (UG) would be deleted from the designation of Engineers in the upgraded posts and that the incumbents in the erstwhile Asst. Engineer (UG) would continue to discharge the duties and 5 WP(C).No.11688 OF 2014 responsibilities they were performing at that time. It is stated that pursuant to Ext P7 order, the suffix (UG) was deleted from the designation of Assistant Engineers in Ext P8 statement of Supervisory staff issued on 01.04.2005. It is stated that orders were issued thereafter regularising the upgraded Assistant Engineers as against regular posts of Assistant Engineers and accordingly petitioners 1 to 6 were regularised from various dates in 2011, 2010 and 2008. It is stated that on upgradation and on the basis of Ext P3 and P4 orders, the petitioners' got their pay fixed with grant of increment and fixation benefits. 3. While so, an audit was conducted for the period from 01.09.2006 to 30.09.2009 and in Ext.P9 proceedings objections were raised in respect of two of the employees who got upgraded as Assistant Engineers based on Ext.P1 order, pointing out that their pay should have been fixed as per F.R. 22(1) (a)(ii) and F.R 23(6), as the upgradation was subject to the conditions that they continued to perform duties prior to the upgradation. It is 6 WP(C).No.11688 OF 2014 stated that one Mr. Mohanan approached this court challenging the proceedings for recovery initiated against him and when he approached the chairman, based on the directions in the judgment in that Writ Petition, the Chairman reduced the amount. While so petitioners also received Ext P10 to P17 orders dated 22.04.2014,on the basis of those audit objections, directing them to refund the excess pay Failing which it would be recovered from their salary. The petitioners approached this court challenging these orders. 4. It is stated that one Mr.K.R.Mohanan,AE(M) who was faced with the recovery proceedings had submitted an appeal and that appeal was rejected. The petitioners claim that the undertaking obtained from themselves on upgradation of the post is illegal and upgradation of corresponding number of post of Junior Engineers were abolished and there cannot be any objections against the fixation of their pay on the basis of duties performed by them. Petitioners claim that they were actually performing the duties attached to the post of Assistant 7 WP(C).No.11688 OF 2014 Engineers. They claim that it was not even necessary to issue orders regularising them and affixing (SDO) or (UG) along with their designation. It is their contention that the duties and responsibilities they performing were different and there is cannot be any classification among Assistant Engineers who were upgraded and who were not upgraded. It is also their contention that there is no post of Assistant Engineer SDO. It is stated that the orders Ext P10 to P17 are issued even without a notice and without even informing them the nature of objection. 5. The respondents 1-7 as well as the 8[th] respondent have filed separate counter affidavits. According to respondents 1-7, upgradation of the Junior Engineers was ordered on condition that they would have to carry out the same work after upgradation, as decided by the Board of Trustees on 23.04.2001 in Ext R1(A) decision (Ext P2). According to them upgradation ordered in Ext P3 and P4 was not promotion. It is stated that the Audit Officer raised objections as to the fixation of pay of 8 WP(C).No.11688 OF 2014 petitioners under FR 22(1)(a)(i) in Ext R1B stating that it was to be fixed under FR 22(1)(a)(ii), as there was no change in duties and responsibilities on upgradation. The petitioners' pay was fixed under F.R.22(1)(a)(i), which can be done only on promotion when there is change in duties and responsibilities. According to the respondents,suffix “SDO” was made for the purpose of identification of regular post of Assistant Engineers and upgraded Assistant Engineers and as soon as all the upgraded Assistant Engineers are regularised, suffix “SGO” would automatically vanish. It is stated that petitioners were appointed in the regular post of Assistant Engineers as and when regular vacancies arose in the post and until then they had to perform the duties of Junior Engineers. 6. It is also stated that upgradation of Junior Engineers as Assistant Engineers was made without sanction from Government which is required under the Major Port Trust Act, 1963. It is also stated that Ministry of Shipping vide letter No.C- 9 WP(C).No.11688 OF 2014 18018/27/2000/PE-II dated 15.03.2001 had informed that upgradation of post was not within the purview of Board of Trustees of Port and pay fixation under F.R 22(1)(a)(i) is not applicable for fixing the pay on upgradation as it does not involve higher responsibilities. 7. The petitioners have filed reply affidavit producing various documents to show that there was difference in duties and responsibilities. On the basis of letter received and information collected in the Right to Information Act, they claim that there is no order fixing duties and responsibilities of Assistant Engineer (SDO) and there is no decision of the Board of Trustees enabling classification for the post of Assistant Engineers and Junior Assistant Engineers SDO. It is their further contention that the pay was fixed as early as in 2001 when they were granted upgradation and orders of recovery were issued in 2014 is not permissible in the light of the judgments of the Apex Court as they were not responsible for such fixation of pay. 10 WP(C).No.11688 OF 2014 8. The Learned Counsel for the petitioner relied on the judgments held by Apex Court in _**State of Punjab & Ors Vs. Rafiq Masih White Washer**_ reported in 2015 (1) KLT 429 whereas the learned. Senior counsel relied on judgment of Apex Court in _**Chandi Prasad Uniyal and Ors Vs. State of Uttarakhand and Ors**_ reported in (2012)8SCC417 in support of the respective contentions that recovery cannot be made. Learned Sr.counsel points out that the public money is involved and petitioners were getting benefits from the erroneous fixation of pay they are entitled to refund the same. 9.On consideration of the contentions on both sides it is seen that specific undertakings were obtained from the petitioners when they were upgraded to the post of Assistant Engineeers as per Ext.P3 and P4 orders that they would perform the duties of Junior Engineers. Hence it cannot be said that there was change in the duties and responsibilities. The subsequent orders would show that the persons like petitioners where placed on 11 WP(C).No.11688 OF 2014 probation as and when vacancies arose in the post of Assistant Engineers on regular basis. Ext.P24 order produced by the petitioner would show that they held the upgraded post of Assistant Engineer till orders were issued on 21.11.2016 when he was placed against the regular post of Assistant Engineer and was placed on probation. It is clear that they were not holding any regular post on upgradation. Therefore I am of the view that petitioners were not entitled to get their pay fixed in F.R 22(1)(a)(i) and hence there is nothing wrong in the audit objection. 10. The question which remains is whether erroneous pay fixed in the case of the petitioners is liable to be recovered on the ground that recovery was ordered only in 2014. In para 18 of the judgment in _**State of Punjab v. Rafiq Masih, (2015) 4 SCC 334**_ **, the Apex Court** summarised the situations where recoveries are impermissible, as follows: ( _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.**_ 12 WP(C).No.11688 OF 2014 ( _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. 11. In this case orders for recovery were issued in the year 2014 whereas petitioners were being paid mistakenly since 2001. In this case recovery could not be effected because of the interim order passed in this Writ Petition. In view of clause 3 of the paragraph 18 of the judgment in Raffiq Massih's case, there cannot be any recovery upto 2014.However respondents are free to re-fix the pay and effect recovery for the period from the date on which Ext P10 to P17 orders were issued. This Writ petition is disposed of accordingly **P.V.ASHA JUDGE** SM 13 WP(C).No.11688 OF 2014 ## **APPENDIX** ## **PETITIONERS'EXHIBITS:** **EXHIBIT P1 EXHIBIT P1- TRUE COPY OF THE RELEVANT AGENDA NOTE DATE 23-4-2001.** **EXHIBIT P2 EXHIBIT P2- TRUE COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE MEETING OF 23-4-2001.** **EXHIBIT P3 EXHIBIT P3- TRUE COPY OF THE ORDER DATED 27-6-2001 OF THE 3RD RESPONDENT.** **EXHIBIT P4 EXHIBIT P4- TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT UPGRADING THE JUNIOR ENGINEERS (CIVIL) DATED 27-6-2001. EXHIBIT P5 EXHIBIT P5- TRUE COPY OF THE RELEVANT EXTRACT OF STATEMENT OF EMPLOYEES OF 2002. EXHIBIT P6 EXHIBIT P6- TRUE COPY OF THE RELEVANT EXTRACT OF THE STATEMENT OF SUPERIOR STAFF OF 2004. EXHIBIT P7 EXHIBIT P7- TRUE COPY OF THE ORDER DATED 27-5-2005 ISSUED BY THE 3RD RESPONDENT PURSUANT TO THE SETTLEMENT. EXHIBIT P8 EXHIBIT P8- TRUE COPY OF THE RELEVANT EXTRACTS OF THE STATEMENT OF SUPERVISORY STAFF. EXHIBIT P9 EXHIBIT P9- TRUE COPY OF THE FORWARDING LETTER FROM THE RESIDENT AUDITOR, ENCLOSING THE RELEVANT REPORT DATED 8-1-2010. EXHIBIT P10 EXHIBIT P10- TRUE COPY OF THE ORDER ISSUED TO THE 1ST PETITIONER FOR RECOVERY DATED 22-4-2014. EXHIBIT P11 EXHIBIT P11- TRUE COPY OF THE ORDER ISSUED TO THE 2ND PETITIONER FOR RECOVERY DATED 22-4-2014. EXHIBIT P12 EXHIBIT P12- TRUE COPY OF THE ORDER ISSUED TO THE 3RD PETITIONER FOR RECOVERY DATED 21-4-2014. EXHIBIT P13 EXHIBIT P13- TRUE COPY OF THE ORDER ISSUED TO THE 4TH PETITIONER FOR RECOVERY DATED** 14 WP(C).No.11688 OF 2014 ||**19-4-2014.**| |---|---| |**EXHIBIT P14**|**EXHIBIT P14- TRUE COPY OF THE ORDER ISSUED**| ||**TO THE 5TH PETITIONER FOR RECOVERY DATED**| ||**11-4-2014.**| |**EXHIBIT P15**|**EXHIBIT P15- TRUE COPY OF THE ORDER ISSUED**| ||**TO THE 6TH PETITIONER FOR RECOVERY DATED**| ||**24-3-2014.**| |**EXHIBIT P16**|**EXHIBIT P16- TRUE COPY OF THE ORDER ISSUED**| ||**TO THE 7TH PETITIONER FOR RECOVERY DATED**| ||**24-3-2014.**| |**EXHIBIT P17**|**EXHIBIT P17- TRUE COPY OF THE ORDER ISSUED**| ||**TO THE 8TH PETITIONER FOR RECOVERY DATED**| ||**11-4-2014.**| |**EXHIBIT P18**|**EXHIBIT P18- TRUE COPY OF THE APPLICATION**| ||**SUBMITTED BY K.R.MOHANAN UNDER THE RTI ACT**| ||**DATED 8-11-12.**| |**EXHIBIT P19**|**EXHIBIT P19- TRUE COPY OF THE REPLY**| ||**OBTAINED UNDER THE RTI ACT REGARDING**| ||**NOMENCLATURE "AESDO" DATED 11-1-2013.**| |**EXHIBIT P20**|**TRUE COPY OF THE LETTER NO. A-11013/33/96-**| ||**PE.11 DATED 10.06.1998 ISSUED BY THE**| ||**MINISTRY OF SURFACE TRANSPORT TO THE**| ||**CHAIRMAN, COCHIN PORT TRUST.**| |**EXHIBIT P21**|**TRUE COPY OF THE ORDER ISSUED BY THE**| ||**SECRETARY, COCHIN PORT TRUST, PLACING 8**| ||**JUNIOR ENGINEERS AS ASSISTANT ENGINEERS**| ||**DATED 14.11.1995**| |**EXHIBIT P22**|**TRUE COPY OF THE ORDER NO**| ||**MD/OE/A3/I/KPG/NM/2017 DATED 06.10.2017**| |**EXHIBIT P23**|**TRUE COPY OF LETTER NO. A4/ME/2000/S DATED**| ||**08.08.2002 ISSUED BY THE COCHING PORT TRUST**| ||**TO THE DY.ACCOUNTANT GENERAL**| |**EXHIBIT P24**|**TRUE COPY OF THE LETTER NO.A4/AE(C)**| ||**SO/2017-S DATED 24.05.2017 ISSUED TO THE**| ||**8TH PETITIONER BY THE 3RD RESPONDENT.**| |**EXHIBIT P25**|**TRUE COPY OF THE RELEVANT EXTRACT OF THE**| ||**MINUTES OF THE PROCEEDINGS OF THE ORDINARY**| ||**MEETING OF THE BORAD OF TRUSTEES HELD ON**| ||**26.10.2016.**| 15 WP(C).No.11688 OF 2014 ## **RESPONDENTS'EXHIBITS:** **EXHIBIT R1(A)** **EXHIBIT R1(B)** **TRUE COPY OF THE RELEVANT PAGE OF THE BOARD RESOLUTION NO.147 DATED 23.04.2001 TRUE COPY OF THE LETTER DATED 08.01.2010**