K. Jayaprakash and others v. Government of Kerala and Kerala State Construction Corporation Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 4[TH] DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944** ## **WP(C) NO.15661 OF 2021** ## **- PETITIONERS :** |1|K. JAYAPRAKASH,| |---|---| ||KRISHNA - 1168A, SATELITE TOWNSHIP,| ||KAKKANAD WEST P.O, ERNAKULAM – 682 030.| |2|HARIKUMAR B| ||VELETH HOUSE, A.N. PURAM (EAST NADA),| ||ALAPPUZHA – 688 011.| |3|VIJAYAKUMARI V.N.| ||SOUPARNIKA, MULAKULAM (NORTH),| ||PIRAVOM, ERNAKULAM – 686 664.| |4|MERCY THOMAS| ||PARAMBATH KUREEKKALLIL HOUSE, THIRUVANIYOOR P.O,| ||PUTHNECRUZ (VIA), ERNAKULAM – 682 308.| |5|GERTUDE P.G| ||MAROTTIKKAPARAMBIL HOUSE, SCHOOLMITTOM,| ||VYPPIN, ERNAKULAM – 682 508.| |6|JALAJA P.G| ||PADMA NIVAS, PERUMBODATH LANE,| ||SRM ROAD, ERNAKULAM – 682 018.| |7|P.REMA| ||KANIAMPARAMBIL HOUSE, JRA - 209,| ||MANJUMMEL P.O, ERNAKULAM – 683 501.| |8|CHERIYAN P.A| ||PADINJARETHALACKAL, PONNETH SOUTH ROAD,| ||KADAVANTHRA P.O, ERNAKULAM – 682 020.| |9|JAMMA BRIGHT| ||ILLIPARAMBIL HOUSE, MANIMALA ROAD,| ||EDAPPALLY, ERNAKLAM – 682 024.| |10|SHINE KUMAR C.R| ||VAISHNAVAM, JESUS ROAD, SCHOOLPADY,| ||VADUTHALA, ERNAKULAM – 682 023.| WP(C) NO.15661 OF 2021 -: 2 :- 11 K.JAYACHANDRAN KRIPA, ERA - 82, TC. 19/172, KUDAPPANAKUNNU P.O, TRIVANDRUM – 695 043. 12 BAJI KUMAR S. 'DIIWANY', T.C. 91/1789, VALIYAKULAM RESIDENCE ASSOCIATION B-1, KARIKKAKOM P.O, THIRUVANANTHAPURAM – 695 021. BY ADVS. V.K.PRASAD R.SUDHIR C.SIVADAS AKHIL SASIDHARAN ## **- RESPONDENTS :** 1 THE GOVERNMENT OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM – 695 001. 2 KERALA STATE CONSTRUCTION CORPORATION LIMITED REPRESENTED BY ITS MANAGING DIRECTOR, KERALA STATE CONSTRUCTION CORPORATION, ADMINISTRATIVE OFFICE, 30/1521-A, BAY UNDER BRIDGE, PONNURUNNI, VYTTILA, ERNAKULAM – 682 019. BY ADVS. M.RAJAGOPALAN NAIR G.BIJU SRI.M.RAJEEV, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.15661 OF 2021 -: 3 :- ## JUDGMENT ## Dated this the 4th day of November, 2022 This writ petition is filed seeking directions to the respondents to release the benefits/arrears of pay revision, 2009 to the petitioners in compliance with Exts.P1 and P2 orders. 2. The learned counsel for the petitioners submits that they are retired employees of the respondents. It is submitted that they were initially engaged as contract workers and were later placed in the scales of pay applicable to the regular posts. It is contended that pay revision benefits were also extended to them. By Ext.P5 order dated 14.3.2013, the petitioners along with others were regularised in service with prospective effect and against the entry post. The petitioners took up the matter before the Government and ultimately Ext.P6 order dated 4.2.2015 was rendered, by which, the regularisation was given retrospective effect with effect from their date of entry into service with notional effect. It is submitted by the learned counsel for the petitioners that it is thereafter that Ext.P1 pay revision of the year 2009 was made applicable to the employees of the respondent Corporation. It is submitted that by Exts.P1 and P2, the petitioners were entitled to be paid the arrears of the pay revision which was effected from 1.7.2009, but WP(C) NO.15661 OF 2021 -: 4 :- that such benefits had not been released to the petitioners. It is contended that the matter is kept pending without any proper justification. 3. A statement has been filed by the 2[nd] respondent wherein it is contended that 2009 pay revision had been made applicable to employees of the respondent Corporation by Ext.P1 order dated 13.2.2020. It is submitted that due to the poor financial situation of the Corporation, the arrears have not been released to any of the employees. The learned Standing Counsel appearing for the respondents draws my attention to Clause 10 of Ext.P1, which specifically states that the payment of arrears in respect of pay revision shall be decided by the Board of Directors of KSCC Ltd., taking into account the financial position of the Corporation. It is stated in the counter affidavit that the arrears of the pay revision with effect from 1.7.2009 have not been disbursed to any employee including the existing employees and no discriminatory treatment has been adopted by the 2[nd] respondent in this regard. It is further contended that the petitioners' services were regularised only by Ext.P5 Government Order dated 14.3.2013. The said Government Order had only prospective effect. The matter was taken up before the Government and Ext.P6 order was issued on 4.2.2015 granting retrospective effect to the regularisation, but with notional effect. WP(C) NO.15661 OF 2021 -: 5 :- It is submitted that the petitioners had been given the benefit of the pay revisions effected in 1997 and 2004. However, it is submitted that in the meanwhile, after the issuance of Ext.P1, the District Squad of the Finance Inspection Wing had conducted an inspection in the respondent Corporation and a letter had issued on 16.4.2021 recommending to refix the pay of 50 employees whose services were regularised as per Exts.P5 and P6 Government Orders and to recover the excess pay. It is submitted that the further proceedings with regard to the refixation of pay and recovery are pending. It is submitted that the further steps in that regard will be finalised and the question of payment of arrears of the pay revision, 2009 will be duly taken by the respondents and amounts, if any, found due will be released to the petitioners. 4. An additional statement has also been placed on record. It is contended therein that the meeting of the Board of Directors held on 10.2.2021 have resolved to authorise the Managing Director to draw and disburse the 2009 pay revision arrears to all employees pursuant to which the pay fixation works were commenced in the Corporation. It is submitted that on the basis of recommendation of the Finance Inspection Wing, the Corporation has requested the Government to conduct a Government level inspection into the pay fixation of all employees/retired employees WP(C) NO.15661 OF 2021 -: 6 :- of the Corporation and to sanction the release of the arrears. It is submitted that the pay fixation benefits are to be released on the basis of the findings of the Government inspections as requested by the Corporation. It is submitted that the Corporation was not in a position to fix the time limit for completion of the pay fixation process and the release of the arrears. 5. The learned counsel for the petitioners submits that it is evident from the statement as well as the documents produced by the respondents that what is sought to be realised from the petitioners is the benefits already granted pursuant to the 1997 pay revision. It is contended that the petitioners have not been put on notice of any error in the fixation of their pay. It is further contended that even in case there is any error in such fixation, the petitioners who have already retired from service cannot be mulcted with any liability in view of the admitted position that they are not in any way responsible for the wrong fixation of pay. 6. The learned counsel also places reliance on the decisions of the Apex Court in State of Punjab and others v. Rafiq Masih (White Washer) [2014 KHC 4818] as also Thomas Daniel v. State of Kerala and others [2022 (3) KLT 307 (SC)]. 7. I have considered the contentions advanced on both sides. The petitioners are persons, who had been regularised in WP(C) NO.15661 OF 2021 -: 7 :- service pursuant to Exts.P5 and P6 orders. Ext.P6 grants notional effect to the retrospective regularisation from the date of entry into service. Ext.P1 is a Government Order dated 13.2.2020, by which, the 2009 pay revision has been made applicable to employees of the 2[nd] respondent Corporation. Ext.P1 states that the revised scale of pay will be sanctioned with effect from 1.7.2009 and the date of effect of allowances below at the revised rate would be 1.2.2011. However, the Government Order also specifically states that the entire expenditure of the revision will be met by the 2[nd] respondent and the payment of arrears in respect of pay revision shall be decided by the Board of Directors of the KSCC Ltd., taking into account the financial position of the Corporation. It is contended that when steps have been taken to calculate and release the arrears to the existing employees as well as the retired employees, the Finance Inspection Wing had raised an objection with regard to the fixation of the pay of the petitioners pursuant to Ext.P6. It is submitted that the said issue is now pending with the Government since the 2[nd] respondent has requested the Government to conduct a detailed inspection into the pay fixation and to recommend the further steps to be taken in the matter. In any view of the matter and in view of the fact that all the petitioners are retired employees, the contention that the recovery has to be effected from the benefits WP(C) NO.15661 OF 2021 -: 8 :- already drawn by them cannot be accepted in the light of the judgments of the Apex Court as relied on by the learned counsel for the petitioners. The petitioners being employees against whom absolutely no allegations of any wrong doing in the matter of fixation of the pay is raised cannot be mulcted with the liability of recovery or refund of amounts already drawn by them on account of fixation of pay which has been done by the respondents even if such fixation is incorrectly done. In view of the further submission that the petitioners have not been put on notice of any refixation of pay, I am of the opinion that any refixation which is likely to affect the petitioners adversely can be done only after issuance of proper notices to them and after considering their objections on their merits. In the above view of the matter, this writ petition is disposed of directing that the steps for finalisation of the payment of arrears due to the petitioners on account of Ext.P1 shall be finalised by the respondents without undue delay at any rate, within six months from the date of receipt of a copy of this judgment. The 1[st] respondent shall also take note of the request made by the 2[nd] respondent and take appropriate follow up action in the matter. The petitioners shall be put on notice and heard on any proposal for refixation of their pay or pensionary benefits. It is WP(C) NO.15661 OF 2021 -: 9 :- made clear that recovery of amounts already drawn by the petitioners shall not be done since the petitioners have already retired from service after drawing the amounts which is a consequence of the pay fixed and granted to them. Sd/ANU SIVARAMAN JUDGE Jvt/5.11.2022 WP(C) NO.15661 OF 2021 ## -: 10 :- ## **APPENDIX OF WP(C) 15661/2021** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE ORDER NO.G.O(MS) NO.19/2020/PWD DATED 13.02.2020 ISSUED BY 1ST RESPONDENT GOVERNMENT OF KERALA. Exhibit P2 A TRUE COPY OF THE PROCEEDINGS OF THE MANAGING DIRECTOR OF THE 2ND RESPONDENT, UNDER ORDER NO.CC/E3/PR/2009/2017/836 DATED 23.02.2021. - Exhibit P3 A TRUE COPY OF THE G.O(M.S) NO. 80/99/PWD DATED 06.10.1999 ISSUED BY 1ST RESPONDENT ACCORDING SANCTION TO GRANT TIME SCALES OF PAY. - Exhibit P4 A TRUE COPY OF THE ORDER UNDER REF/CC/R-12/89 DATED 13.10.1999 ISSUED BY THE 2ND RESPONDENT IMPLEMENTING THE DIRECTION OF THE 1ST RESPONDENT. - Exhibit P5 A TRUE COPY OF THE G.O(K) NO. 29/13/PWD DATED 14.03.2013 ISSUED BY THE 1ST RESPONDENT GOVERNMENT OF KERALA. - Exhibit P6 A TRUE COPY OF THE ORDER UNDER REF.G.O(MS) NO.7/15/PWD DATED 04.02.2015 ISSUED BY THE 1ST RESPONDENT GOVERNMENT OF KERALA. - Exhibit P7 A TRUE COPY OF THE G.O(MS) NO.58/18/PWD DATED 30.06.2015 ISSUED BY THE 1ST RESPONDENT GOVERNMENT OF KERALA, SANCTIONING PAY REVISION TO EMPLOYEES OF 2ND RESPONDENT CORPORATION. - Exhibit P8 A TRUE COPY OF A LETTER DATED 22.06.2021 ADDRESSED TO THE HON'BLE MINISTER FOR PUBLIC WORKS' GOVERNMENT OF KERALA, BY A RETIRED EMPLOYEE. - Exhibit P9 A COPY OF THE REPORT UNDER REF. NO.CC/E3/COMPLAINT/2017 DATED 05.02.2021 SUBMITTED BY THE MANAGING DIRECTOR OF THE 2ND RESPONDENT TO THE HON'BLE CHIEF MINISTER OF KERALA. WP(C) NO.15661 OF 2021 -: 11 :- RESPONDENTS' EXHIBITS :- ANNEXURE R1(a) : TRUE COPY OF T HE MINUTES OF THE 201ST MEETING OF BOARD OF DIRECTORS OF 2ND RESPONDENT CORPORATION HELD ON 24.11.2021. ANNEXURE R1(b) : TRUE COPY OF THE LETTER No.CC/E3/PR/2009/ 2017/VOL.I DATED 01.02.2022 FROM KSCC TO THE GOVERNMENT.