M. Mohanadasan v. The Managing Director, Kerala Water Authority and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` TUESDAY, THE 16[TH] DAY OF JANUARY 2024 / 26TH POUSHA, 1945 ``` ## `W.P.(C) NO.8525 OF 2022` ## `PETITIONER:` ``` M.MOHANADASAN, AGED 57 YEARS, S/O.MADHAVAN, RETD. HEAD OPERATOR, KERALA WATER AUTHORITY, PH SUB DIVISION, KALMANDAPAM, PALAKKAD, RESIDING AT RAGAMALIKA, PUZHAKKAL, YAKKARA P.O., KANNADI, PALAKKAD-678 701. ``` ``` BY ADV U.BALAGANGADHARAN ``` ## `RESPONDENTS:` - `1 THE MANAGING DIRECTOR, KERALA WATER AUTHORITY(KWA), JALA BHAVAN, THIRUVANANTHAPURAM-695 001.` - `2 THE CHIEF ENGINEER, NORTHERN REGION, KERALA WATER AUTHORITY, MALAPPARAMBU, KOZHIKODE-673 009.` - `3 THE FINANCE MANAGER AND CHIEF ACCOUNTS OFFICER, KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM-695 001.` - `4 THE EXECUTIVE ENGINEER, PUBLIC HEALTH DIVISION, KERALA WATER AUTHORITY, PALAKKAD-678 007.` - `5 THE SUPERINTENDING ENGINEER, PH CIRCLE, KERALA WATER AUTHORITY, KALMANDAPAM, PALAKKAD-678 007.` - `6 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, WATER RESOURCES DEPARTMENT, THIRUVANANTHAPURAM-695 001.` ``` BY ADV P.M.JOHNY ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 _WPC. 8525/2022_ ## JUDGMENT ( _Dated: 16[th ] January, 2024)_ On 31.05.2020, the petitioner retired from the service of the 1[st] respondent as Head Operator. He was initially engaged as Casual Labour on 01.03.1985 on daily wages, later upgraded as NMR worker with effect from 22.05.1990, and was given a scale of pay of Rs.8451370 (pre-revised). He was absorbed into the regular service with effect from 21.10.2005. On the basis of Ext.P2 Government Order, the Water Authority had issued a consequential order, granting a time-bound higher grade, reckoning the prior Casual Labour service of the petitioner as NMR. Through Ext.P4 communication dated 05.04.2016, the 1[st] respondent permitted those NMR who got regularisation with retrospective effect to exercise re-option. Pursuant to Ext.P4, the 2[nd] respondent granted permission to the petitioner and two others to change their option. Accordingly, the petitioner changed his option from 01.05.1998 to 01.03.1997, and the pay and allowances were fixed accordingly. The option was duly accepted by the authorities without 3 _WPC. 8525/2022_ any demur, and they continued to draw the pay and allowances thereafter. 2. On the basis of the audit objection, the 3[rd] respondent issued a letter to the 5[th] respondent, pointing out the audit objections and reviewing the pay fixation and time-bound higher grade given to the petitioner after the retirement. 3. Two audit objections are stated in Ext.P6; the 1[st] one regards the change of option from 01.05.1998 to 01.03.1997, which is irregular, and the 2[nd] is the counting of CLR service for a time-bound higher grade, which is also irregular. On the basis of the audit objection as well as Ext.P6, the pension, and DCRG of the petitioner were refixed. The petitioner has approached this court seeking the following reliefs: _1. Call for the records leading to Ext.P.6 and Ext.P.14 and set aside the same by issuing writ in the nature of certiorari._ _2 Issue writ in the nature of mandamus commanding the 1 respondent to sanction and disburse pension, DCRG, CVP and such other benefits without any deduction as proposed by the 5[th] respondent in Ext. P.6 and Ext. P. 14._ _3. Issue writ in the nature of mandamus commanding the 1[st] respondent to pay interest on the delayed payments viz. Pension, DCRG and CVP and further_ 4 _WPC. 8525/2022_ _direct the 1[st] respondent to recover it from the responsible who delayed the processing of pension and other benefits to the petitioner._ _4. Issue writ in the nature of mandamus commanding the 1[st] respondent NOT to reduce or deduct any amount from the pension or DCRG or CVP pursuant to any objection raised in Ext. P.6 and Ext.P.14._ _5. Declare that the petitioner entitled to be disbursed with full pension, DCRG, CVP without any deduction as proposed in Ext.P.6 and Ext. P.14, however, with interest at GPF rate recoverable from 5[th] respondent._ _6. Such other reliefs that the Hon’ble Court deem fit and proper in the facts and circumstances of the case._ 4. A counter affidavit is filed on behalf of respondents 1 to 5, in which it is contended that the incumbent was absorbed into the NMR category with effect from 22.05.1990 and later absorbed into regular service with effect from 21.10.2005 and therefore, monetary benefits are eligible only with effect from the date of regularisation _i.e._ 21.10.2005. The date of regularisation was given with retrospective effect from 22.05.1995, reckoning five years of NMR service. 5. The change of option date of the petitioner was found to be irregular in the audit. The pension, DCRG, and commuted value of the pension were authorized from the pension section, and the DCRG and terminal leave surrender have already been paid to the petitioner. The CLR service, in respect of one M.S.Sasikumar and 5 _WPC. 8525/2022_ Aravindan, entered into the service book, has been duly authorized by the concerned accounts officer and they have sanctioned the benefits without any objections, but the pension proposal of the petitioner has not been authorized by the accounts officer because of the two objections. The CLR/NMR service is not a regular service, hence, it cannot be counted for pension. Therefore, the counsel for the respondents prayed for the dismissal of the writ petition. 6. Heard Sri.U.Balagangadharan, learned counsel for the petitioner, and Sri.P.Benjamin Paul, learned standing counsel for the respondents. 7. The counsel for the petitioner Sri.U.Balagangadharan submits that the option was exercised by the petitioner on the basis of Ext.P4, and therefore the first audit objection is bad in law. As per the 2[nd] audit objection regarding the counting of CLR service, a perusal of Ext.P7 would show that the CLR service of the petitioner was authorized by the competent authority. Therefore, both the audit objections are bad in law, and the refixation of pension and other benefits done by Ext.P11 are illegal and improper. 6 _WPC. 8525/2022_ 8. The counsel for the petitioner further relies on the judgment of this court in _Regional Cancer Centre (RCC) and Others v. Ganga Devi and Others (2022 (5) KHC 123)_ as well as the _State of Kerala and Another v. Suresh Chandran and Others (2021 KHC 359)_ , for the proposition that refixation of pay after retirement and the steps to recover excess amounts allegedly paid to the employee from his terminal benefits based on rectification committee report is arbitrary and unreasonable and is in violation of natural justice. Therefore, he prays for allowing the writ petition. In view of the declaration of law laid by this court in _Regional Cancer Centre (RCC) and Others_ case and _Suresh Chandran’s_ case cited ( _supra_ ), after the retirement of the employee, the employer loses the disciplinary control over the employee and the legal relationship comes to an end, therefore, it is arbitrary and unreasonable and is also the violation of the principles of natural justice that the re-fixation of the pension as well as DCRG is done. Therefore, Exts.P6 and P14 cannot be sustained in law, and they are quashed. Consequently, the 1[st] respondent is directed to sanction and disburse the pension, DCRG 7 _WPC. 8525/2022_ CVP, and other benefits without any deduction, within a period of two months from the date of receipt of a copy of the judgment. The writ petition is allowed. _Sd/-_ BASANT BALAJI, JUDGE ss 8 _WPC. 8525/2022_ ``` APPENDIX OF WP(C) 8525/2022 ``` |`PETITIONER EXHIBITS:`|| |---|---| |`Exhibit P1`|`A TRUE COPY OF ORDER DATED 18/09/2015 ISSUED BY`| ||`THE FIRST RESPONDENT.`| |`Exhibit P2`|`A TRUE COPY OF GOVERNMENT ORDER (RT) NO.`| ||`279/2006/WRD DATED 01/03/2006 ISSUED BY WATER`| ||`RESOURCE (WATER SUPPLY-B) DEPARTMENT.`| |`Exhibit P3`|`A TRUE COPY OF ORDER DATED 21/07/2006 ISSUED BY`| ||`THE EXECUTIVE ENGINEER.`| |`Exhibit P4`|`A TRUE COPY OF COMMUNICATION DATED 05/04/2016`| ||`ISSUED BY THE FIRST RESPONDENT TO`| ||`SUPERINTENDING ENGINEER.`| |`Exhibit P5`|`A TRUE COPY OF LETTER DATED 30/06/2016 ISSUED`| ||`BY THE 2ND RESPONDENT.`| |`Exhibit P6`|`A TRUE COPY OF LETTER DATED 30/07/2020`| ||`(10/08/2020) ISSUED BY ACCOUNTS OFFICER TO 5TH`| ||`RESPONDENT.`| |`Exhibit P7`|`A TRUE COPY OF RELEVANT PAGE OF SERVICE BOOK OF`| ||`THE PETITIONER SHOWING THE CASUAL SERVICE.`| |`Exhibit P8`|`A TRUE COPY OF RELEVANT PAGES OF SERVICE BOOK`| ||`OF THE PETITIONER.`| |`Exhibit P9`|`A TRUE COPY OF LETTER DATED 18/09/2020 ISSUED`| ||`BY ASSISTANT EXECUTIVE ENGINEER, PH SUB`| ||`DIVISION, PALAKKAD.`| |`Exhibit P10`|`A TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT`| ||`DATED 17/11/2020 IN WPC 13979/2020.`| |`Exhibit P11`|`A TRUE COPY OF LETTER DATED 28/01/2021 ISSUED`| ||`BY THE EXECUTIVE ENGINEER, ALONG WITH REVISED`| ||`PROPOSALS OF PENSION, DCRG, TBHG ETC.`| |`Exhibit P12`|`A TRUE COPY OF GRATUITY PAYMENT ORDER DATED`| ||`12/07/2021 ISSUED BY THE ACCOUNTS OFFICER,`| ||`KERALA WATER AUTHORITY.`| |`Exhibit P13`|`A TRUE COPY OF THE JUDGMENT DATED 22/11/2021 IN`| ||`WPC NO.27691/2020 OF THIS HON'BLE COURT.`| |`Exhibit P14`|`A TRUE COPY OF ORDER DATED 24/01/2022 ISSUED BY`| ||`THE FIRST RESPONDENT.`| |`Exhibit P15`|`A TRUE COPY OF THE GO(P) NO.10/2021/WRD DATED`| ||`31/03/2021.`|