M. Manoj v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **THURSDAY, THE 20TH DAY OF OCTOBER 2016/28TH ASWINA, 1938** ## **WP(C).No. 13135 of 2016 (N)** **----------------------------** ## **PETITIONER(S)/PETITIONER:** **------------------------** **M.MANOJ SUB ENGINEER (TRAINEE), ELECTRICAL SELECTION, KERALA STATE ELECTRICITY BOARD, MANNAM, P.O. MANNAM, ERNAKULAM DISTRICT-683520.** ## **BY ADVS.SRI.K.SHRI HARI RAO SMT.N.SHOBHA** ## **RESPONDENT(S):** - **--------------** **1. THE KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM-695004.** **2. THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, REGISTERED OFFICE, PATTAM, THIRUVANANTHAPURAM-695004.** **3. THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL DIVISION, NORTH PARAVUR, ERNAKULAM DISTRICT-683520.** **4. THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, MANNAM, P.O.MANNAM, NORTH PARAVUR, ERNAKULAM DISTRICT-683520.** **R1 BY ADV. SRI.K.S.ANIL, SC, KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 13135 of 2016 (N)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **-----------------------** **EXT.P1: COPY OF THE LETTER DTD 7/9/2015 TO THE PETITIONER FROM 3RD RESPONDENT** **EXT.P2: COPY OF THE REPRESENTATION DTD 28/9/2015 OF THE PETITIONER TO THE 3RD RESPONDENT** **EXT.P3: COPY OF THE LETTER DTD 7/10/2015 OF THE 3RD RESPONDENT TO THE 3RD RESPONDENT** **EXT.P4: COPY OF THE STATEMENT OF PAY REVISION OF THE PETITIONER OF THE YEARS 1998, 2003 AND 2008** **EXT.P5: COPY OF THE REPRESENTATION DTD 28/11/2015 OF THE PETITIONER TO THE 2ND RESPONDENT** **EXT.P6: COPY OF THE ARGUMENT NOTES SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT AT THE TIME OF PERSONAL HEARING HELD ON 29/1/2016** **EXT.P7: COPY OF THE LETTER DTD 16/3/2016 OF THE 2ND RESPONDENT TO THE 3RD RESPONDENT** **EXT.P8: COPY OF THE LETTER DTD 22/3/2016 OF THE 3RD RESPONDENT TO THE PETITIONER.** **RESPONDENT(S)' EXHIBITS:** **NIL.** **-----------------------** **//TRUE COPY//** **P.S. TO JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J. -------------------------------** ## **W.P.(C).NO.13135 OF 2016 (N) ----------------------------------Dated this the 20[th] day of October, 2016** ## **J U D G M E N T** The petitioner, who is working as a Sub Engineer (Trainee) under the respondent Board, had entered service under the compassionate appointment scheme, as an Electrical worker, with effect from 4.10.1999. He was thereafter promoted as Lineman Grade II in 2003, as Lineman Grade I in 2005, as an Overseer in February, 2011, and then as Sub Engineer (Trainee) with effect from March, 2014. It is the case of the petitioner that, during the period between 2001 and June, 2002, he had proceeded on leave without allowance, for four spells covering 255 days. The leave availed by him was sanctioned by the respondent Board. It would appear that the respondent Board had included the period, during which the petitioner had proceeded on leave, in the reckoning of qualifying service for the purposes of grant of increments, and the petitioner's increments were disbursed from 2002 onwards, by including the aforesaid period availed as leave in the reckoning of qualifying service. The mistake that was committed by the respondent Board **W.P.(C).No.13135/2016** **2** was noticed only in an audit that was conducted in 2015. By Ext.P1 notice dated 7.9.2015, therefore, the 3[rd] respondent called the petitioner's attention to the audit objection, and sought to recover the amounts paid to the petitioner in excess on account of the erroneous grant of increment from an earlier date. The amount sought to be recovered from the petitioner was Rs.2,31,914/- and pertained to the period from 15.6.2002 to July, 2015. Although, initially, the petitioner, in response to Ext.P1 notice, preferred Ext.P2 representation dated 28.9.2015, stating that he would not be in a position to refund the excess amounts paid to him in lump sum, and would only be able to repay the amounts in installments, by a later representation, Ext.P5 dated 28.11.2015, that was submitted by the petitioner, after obtaining details of the audit objection, he pointed out to the respondent Board that the mistake was not occasioned through any act or omission on his part, and at any rate, he was not aware of the mistake in the grant of increments to him till 2015, when the notice seeking recovery of excess amounts paid to him, was served on him. The said representation was later followed by Ext.P6 argument note that was submitted by the petitioner, at the time of hearing, before the 2[nd] respondent. The 2[nd] respondent considered the **W.P.(C).No.13135/2016** **3** matter, and by Ext.P7 order, rejected the request of the petitioner for exempting him from the requirement of refunding the amounts drawn by him in excess by way of pay and allowances for the period aforementioned. Ext.P7 order of the respondent Board was communicated to the petitioner by Ext.P8 communication dated 22.3.2016. In the writ petition, Exts.P7 and P8 are impugned, primarily placing reliance on the decision of the Supreme Court in **- State of Punjab v. Rafiq Masih (White Washer) [2015 (1) KLT 429 (SC)]** . 2. A counter affidavit has been filed on behalf of the 1[st] respondent Board, wherein, it is pointed out that, by issuing Ext.P1 show cause notice, the Board was only bringing to the notice of the petitioner, a mistake that had been occasioned while granting increments to the petitioner in the year 2002, and correcting the said mistake on the same being noticed. It is pointed out that administrative mistakes can be corrected by an employer at any point in time, and the recovery that was confirmed against the petitioner by Ext.P7 and P8, was a logical consequence of the correction of the administrative mistake that was occasioned at the instance of the **W.P.(C).No.13135/2016** **4** respondent Board, in 2002. It is also pointed out that, on receipt of Ext.P1 notice, the petitioner himself had admitted that the amounts had been sanctioned to him, erroneously, and his only request was to grant a facility of installment to repay the amounts that had been drawn by him in excess. 3. I have heard Sri.K.Shri Hari Rao, the learned counsel for the petitioner as also Sri.K.S. Anil, the learned Standing counsel for the respondent Board. 4. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that, while it is a well settled principle, in administrate law and in service jurisprudence, that, administrative mistakes committed by an employer can be corrected at any point in time, the issue assumes significance when the correction of the administrative mistake entails a recovery of amounts paid in excess to an employee. The Supreme Court, while considering the issue in the decision reported in **State of - Punjab v. Rafiq Masih (White Washer) [2015 (1) KLT 429 (SC)]** found inter alia that if the mistake of making a wrongful **W.P.(C).No.13135/2016** **5** payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee. Going by the yardstick prescribed by the Supreme Court in the aforementioned decision, and applying it to the facts of the instance case, I find that the mistake that was sought to be corrected in 2015, was actually occasioned in the year 2002, when the petitioner was granted an increment from a date prior to the date on which he stood entitled to the said increment. The respondent Board, which had the facility of auditing payments made by it to employees, on a yearly basis, did not obtain the benefit of any audit objection either in the said year or within the five year period that followed. The audit party appears to have noticed this mistake in relation to the petitioner only in 2015, thirteen years after the commission of the mistake. In such an event, I am of the view that, it would be arbitrary and iniquitous, on the part of the respondent Board, to now seek a recovery of amounts paid in excess, to the petitioner, by way of differential pay and allowances consequent to the said mistaken **W.P.(C).No.13135/2016** **6** payment of increment. I am of the view, however, that it would be open to the respondent Board to effect the corrections in the pay and allowances payable to the petitioner from 2015, pursuant to the noticing of the mistake in the audit objection, and fix the pay and allowances on the petitioner for the future period, accordingly. It is made clear that, what is quashed in this judgment is only Ext.P7 order and Ext.P8 communication, to the extent, it contemplates a recovery of amounts paid to the petitioner, during the period from 15.6.2002 to July, 2015, in excess of what was due to him. The writ petition is disposed as above. ## **A.K.JAYASANKARAN NAMBIAR JUDGE** prp/20/10/16