GIRIJA P. vs STATE OF KERALA & ORS (WP(C).No.22586 of 2019(W))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942** ## **WP(C).No.22586 OF 2019(W)** ## **PETITIONER:** **GIRIJA P. AGED 56 YEARS W/O.RADHAKRISHNAN.A, ASSISTANT ENGINEER(CIVIL)(HG), RETIRED FROM JNNURM PROJECT CIRCLE, KERALA WATER AUTHORITY, HOSPITAL ROAD, ERNAKULAM, ERNAKULAM DISTRICT, PIN-682011, RESIDING AT ARAKKAL HOUSE, 51/2032-B, SAPHALAM, MECHERY ROAD, POONITHURA(PO), ERNAKULAM DISTRICT, PIN-682038** **BY ADVS. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SRI.ARUN BOSE** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF PUBLIC WORKS, GOVERNMENT SECRETARIAT, THIRUVANANTHPAURAM, PIN-695 001** - **2 KERALA WATER AUTHORITY JALA BHAVAN, VELLAYAMBALAM(PO), THIRUVANANTHAPURAM, PIN-695033, REPRESENTED BY ITS MANAGING DIRECTOR.** - **3 MANAGING DIRECTOR KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM(PO), THIRUVANANTHAPURAM, PIN-695033.** - **4 THE FINANCE MANAGER AND CHIEF ACCOUNTS OFFICER, KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM(PO), THIRUVANANTHAPURAM, PIN-695033,** - **5 THE ACCOUNTS OFFICER, (ESTT), KERALA WATER AUTHORITY, JALA BHAVAN,VELLAYAMBALAM(PO), THIRUVANANTHAPURAM, PIN695033.** - **6 THE PROJECT CO-ORDINATOR, JNNURM PROJECT CIRCLE,** **WP(C).No.22586 OF 2019(W)** **2** **KERALA WATER AUTHORITY, HOSPITAL ROAD, ERNAKULAM, ERNAKULAM DISTRICT, PIN-682011** **R2-6 BY SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY** **SRI. SUNIL KUMAR KURIAKOSE - GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.22586 OF 2019(W)** **3** ## **JUDGMENT** ## **Dated this the 9th day of March 2021** The petitioner says that she entered the services of the Kerala Water Authority (KWA) as Draftsman Grade II on 12.03.1991, as advised by the Kerala Public Service Commission (PSC). She says that she was, thereafter, granted promotions up to the post of Assistant Engineer; and that she retired, on attaining the age of superannuation, from that post on 30.06.2018. 2. The petitioner alleges that when her service book was forwarded for computation of her pension, it had been returned, through Ext.P2 order dated 01.06.2018, saying that certain increments and benefits, granted to her as early as from the year 1991, were irregular and that same will require to be fixed as a liability against her, to be recovered from her Death Cum Retirement Gratuity (DCRG). The petitioner asserts that, apart from the fact that these objections in Ext.P2 are wholly untenable – all the benefits mentioned therein having been granted to her validly and based on specific orders issued by the KWA **WP(C).No.22586 OF 2019(W)** **4** themselves - any recovery at this stage is impermissible, as per the ratio in the judgment of the Hon’ble Supreme Court in _**State of Panjab and others vs. Rafiq Masih (White Washer) and others**_ **.** [(2015) 4 SCC 334] The petitioner, therefore, prays that Ext.P2 be set aside and the KWA be directed to pay her the eligible pension and retirement benefits without any further delay. 3. Sri. M.V. Thamban - learned counsel for the petitioner, further explained his client’s case by saying that the objections in Ext.P2 are with respect to her earlier service in the Public Works Department (PWD) of the State of Kerala, between the period from 25.11.1986 till 11.03.1991; and that this had been validly reckoned as qualifying service for all benefits, when she joined the KWA on 12.03.1991, thus, leading to granting of increments and other eligible benefits based on the same. He submitted that it is more than two or three decades later that, in the year 2018, objections were raised against such, and therefore, that Ext.P2 is wholly without competence and contrary to the declarations in _**Rafiq Masih (Supra).**_ He, therefore, reiteratingly prayed that **WP(C).No.22586 OF 2019(W)** **5** Ext.P2 be set aside and his client be granted the benefits at the earliest. 4. Sri. Benjamin Paul - learned Standing Counsel appearing for the KWA, submitted that petitioner entered the services of the KWA on 12.03.1991, after having been relieved from PWD Roads Division as Overseer Grade-III. He explained that, as per the then extant order of the KWA dated 27.10.1999, her pay in the prior service had been protected with effect from 12.03.1991, but that she was granted other service benefits - including increments wrongly reckoning the said service also. He submitted that it is in such circumstances that Ext.P2 objections had been raised and therefore, prayed that same be not interdicted. 5. Sri. Benjamin Paul, thereafter, submitted that the ratio in _**Rafiq Masih (Supra)**_ could not apply to this case because, as has been subsequently declared by the Hon’ble Supreme Court in _**High Court of Panjab and Haryana and others vs. Jagdev Singh**_ [(2016) 14 SCC 267], in cases where an employee had issued an undertaking to the effect that excess amount on account of wrong **WP(C).No.22586 OF 2019(W)** **6** fixation can be recovered, the KWA is within jurisdiction to do so. He asserted that, in this case, the petitioner has given such an undertaking, which is attached to her service book and therefore, that _**Rafiq Masih (Supra)**_ could have no application. He, therefore, prayed that this writ petition be dismissed. 6. When I forensically weigh the afore rival submissions, it is rendered limpid that the KWA expressly admits that all the benefits, which are now sought to be recovered through Ext.P2, were granted to the petitioner validly and without any fault or vitiating reasons that can be attributed to her. These benefits were, admittedly, granted on the basis of valid orders and sanctions issued by the KWA themselves from time to time and it is indubitable that they were offered to the petitioner in the year 1999, to take effect from the year 1991. Obviously, therefore, more than 30 years have now elapsed; and what is now being done through Ext.P2 is to recover the same, after the petitioner has retired from service. 7. At first glance, therefore, the declarations in _**Rafiq Masih (Supra)**_ would apply in all its force; but the KWA counters **WP(C).No.22586 OF 2019(W)** **7** this with their contention that the petitioner had given an undertaking, permitting them to effect recovery from her as attempted through Ext.P2. 8. Apart from the fact that the said alleged undertaking has not been placed on record, it is conceded by Sri. Benjamin Paul that same was given by the petitioner at the time when her pension papers were forwarded to the Authority. It is thus without requirement of further expatiation that the undertaking given by petitioner does not answer the requirements of the one referred to in by _**Jagdev Singh (supra);**_ and that any such undertaking could have helped the KWA only if it had been given at the time when the objected benefits had been granted to her. It is unequivocally admitted before me by the KWA that no such undertaking had been given by the petitioner either in the year 1991 or in the year 1999, when the benefits were given; and obviously, therefore, the stand of the KWA, that such undertaking would permit them to recover the amounts as ordered through Ext.P2, cannot appeal to me. In the afore circumstances, I am firm in my mind that the **WP(C).No.22586 OF 2019(W)** **8** recovery ordered against the petitioner, through Ext.P2, cannot find favour and therefore, is liable to be set aside. It is so ordered. In the afore circumstances, I allow this writ petition and direct the KWA to disburse all pensionary benefits to the petitioner, including DCRG _dehors_ Ext.P2; which shall be done as expeditiously as is possible, but not later than four months from the date of receipt of a copy of this judgment. **Sd/-** **DEVAN RAMACHANDRAN** SAS/09/03/2021 **JUDGE** **WP(C).No.22586 OF 2019(W)** **9** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE PROCEEDING NO.KW/E4/JB/15149/98 DT.27.10.1999 ISSUED BY THE 3RD RESPONDENT** - **EXHIBIT P2 TRUE COPY OF THE LETTER NO.KWA/AO (ESTT)/PEN.9612/8668/5773 DT.01.06.2018 OF THE 5TH RESPONDENT** **EXHIBIT P3 TRUE COPY OF THE GRATUITY PAYMENT ORDER NO.17378/12297 ISSUED BY THE 2ND RESPONDENT EXHIBIT P4 TRUE COPY OF THE GO(P)NO.188/2006/FIN DATED 25.04.2008 ISSUED BY THE GOVERNMENT EXHIBIT P5 TRUE COPY OF THE ORDER NO.KWA/JB/E93176/2007 DATED 09.08.2007 EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN WP(C)NO.18319/2009 DATED 26.09.2014 EXHIBIT P7 TRUE COPY OF THE JUDGMENT DT.12.07.2016 IN WA NO.2556/2015 OF THIS HON'BLE COURT EXHIBIT P8 TRUE COPY OF THE JUDGMENT DT.15.11.2017 IN WP(C)NO.33764/2015 OF THIS HON'BLE COURT EXHIBIT P9 TRUE COPY OF THE JUDGMENT DT.28.3.2019 IN WA NO.137/2019 OF THIS HON'BLE COURT EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DT.22.07.2019 OF THE PETITIONER EXHIBIT P11 TRUE COPY OF PROCEEDING NO.KWA/JB/HO/EI/14681/2016 DT. 12.02.2020, OF THE 3RD RESPONDENT. EXHIBIT P12 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT UNDER RIGHT TO INFORMATION ACT DTD 18.06.2020. EXHIBIT P13 TRUE COPY OF THE REPLY GIVEN TO THE PETITIONER ALONG WITH THE DETAILS OF THE EMPLOYEES RETIRED FROM THE KERALA WATER AUTHORITY FROM 1ST JUNE TO 31ST DECEMBER 2018 AND PAYMENTS OF THEIR DCRG.** **WP(C).No.22586 OF 2019(W)** **10** **EXHIBIT P14 TRUE COPY OF THE G.O.P NO.517/2009/FIN.DATED 19.11.2009** **RESPONDENTS' EXHIBITS: EXHIBIT R2(a): TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 12/02/2020.** //TRUE COPY// P.A. TO JUDGE