M.S. Balakrishnan Nair v. Cochin Port Trust and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 27TH DAY OF MAY 2020 / 6TH JYAISHTA, 1942** ## **WP(C).No.11228 OF 2018(C)** ## **PETITIONER/S:** **M.S. BALAKRISHNAN NAIR S/O CHANDRASEKHARAN NAIR, AGED 69 LALITHALAYAM, THIRIKARIYOOR P.O KOTHAMANGALAM** ## **BY ADV. SRI.ALEXANDER JOSEPH** ## **RESPONDENT/S:** - **1 COCHIN PORT TRUST REPRESENTED BY ITS CHAIRMAN, WILLINGDON ISLAND,KOCHI-682003** - **2 THE SECRTARY,COCHIN PORT TRUST, WILLINGTON ISLAND,KOCHI-682003** - **3 THE ADMINISTRATIVE OFFICER, DOCK LABOUR DIVISION, COCHIN PORT TRUST,WILLINGTON ISLAND, KOCHI-682003** **BY SMT.LATHA ANAND, SC, COCHIN PORT TRUST** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.11228/2018 ## **JUDGMENT** Dated this the 27[th] day of May 2020 The petitioner, who retired from service on 31.05.2004 while working as Junior Labour Instructor has filed this Writ Petition claiming interest towards the delayed payment of his terminal benefits. 2. The petitioner had received a memo subsequent to his retirement on 10.08.2004 proposing recovery of a sum of Rs.1,58,400/- from his terminal benefits on the reason that the pay fixation given to him in 1984 was erroneous. He approached this Court in WP(C) No.7815/2005 challenging the proceedings for recovery. By Ext.P1 judgment the proceedings for recovery were set aside on the ground that it was issued unilaterally. However the respondents were set at liberty to issue fresh notice and to take appropriate action after hearing the petitioner. 3. When the respondents issued orders again directing recovery, petitioner filed WP(C) No.6833/2007 challenging recovery proceedings and seeking directions to the respondents to refund the amount recovered from him along W.P.(C) No.11228/2018 :3: with interest from 01.06.2004 onwards. The said Writ Petition was disposed of as per Ext.P2 judgment observing as follows: _“Therefore, I am of opinion that Ext.P9 should prevail over Ext.R1(c). Admittedly the petitioner is an ex-serviceman below commissioned officer in rank. That being so, by virtue of Ext.P9, the entire pension received by the petitioner is liable to be excluded for the purpose of fixation of his pay, which only has been done at the time of fixation of his pay. For that, Ext.R1(c), which was issued 20 years prior to Ext.P9, is not at all applicable. Therefore, I am of opinion w.p.c.6833/2007 5 that the application of Ext.R1(c) for fixation of pay of the petitioner is clearly in error. As such, there is no reason for refixation of pay and recovery of the alleged excess amount paid, from the petitioner. 7. Even otherwise, despite the protestations of the respondents based on various decisions, I am of opinion that for coming to the conclusion that refixation of pay after 20 years, that too, the petitioner having not contributed to the alleged mistake in fixiton in any way, after a long period of 20 years, that too, after the retirement of the petitioner, is patently unjust and unreasonable, it is not necessary to refer to any precedent. For the above reasons, the petitioner is entitled to succeed in this writ petition. Accordingly, Exts. P4 and P8 are quashed. It is declared that the original refixation of pay of the petitioner was in order and that after 20 years of fixation, it could not have in any way been refixed directing the petitioner to refund any alleged excess. Consequently, the petitioner would be entitled to all the benefits as if the pay of the petitioner has been rightly fixed at the time of his entry into service. Consequently, he would be entitled to his retirement benefits calculated on the basis of the pay he was drawing at the time of his retirement. If on account of the refixaiton any retirement benefits have been reduced, the petitioner is entitled to get arrears of w.p.c.6833/2007 6 the same. Orders in this regard shall be passed and arrears due to the petitioner disbursed, as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. The writ petition is allowed as above”._ ## 4. Respondents filed Writ Appeal which was dismissed as per Ext.P3 judgment dated 12.07.2017. Thereafter petitioner W.P.(C) No.11228/2018 **==> picture [19 x 8] intentionally omitted <==** received a sum of Rs.2,95,000/- on 28.11.2017. The petitioner claimed that the amount due to the petitioner was liable to be paid on the date of retirement itself on 31.05.2004 and it was delayed till 28.11.2017. Claiming interest @ 18% per annum for the delayed payment he submitted Ext.P4 representation on 06.12.2017. He had thereafter filed WP(C) No.39785/2017 which was disposed of as per Ext.P5 judgment directing the 2[nd] respondent to consider his representation. Thereafter the 2[nd] respondent rejected his representation as per Ext.P6 order stating that this Court has not allowed his prayer for interest. The petitioner points out that when the amount due to him in 2004 was paid only in 2017, he is entitled to be paid interest. 5. Respondents have filed a counter affidavit stating that the claim of the petitioner is barred by constructive resjudicata. According to them when Ext.P2 judgment did not direct payment of interest and the said judgment was challenged in Writ Appeal and the petitioner did not take up his claim in WP(C) No.6833/2007 any further, he cannot be granted interest as claimed by him. The learned counsel for the petitioner points out that even though this Court in Ext.P2 judgment directed payment of interest within a W.P.(C) No.11228/2018 :5: period of two months from the date of receipt of the said judgment, respondents took further time for disposal of the Writ Appeal and atleast from the said period the petitioner has to be granted interest. The prayers in WP(C) No.6833/2007 were as follows: _“(a) Call for the records and files leading to Ext.P8 passed by 1 st respondent and quash Ext.P8 by issuance of writ in the nature of certiorari, or any other appropriate writ, order or direction;_ _(b) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondents to restore petitioner's pay as it was prior to the refixation undertaken in terms of Exts.P4 and P8. w.p.c.6833/2007 2_ _(c) Issue a writ in the nature of mandamus or any other appropriate writ, order of direction commanding the respondents to re-fix terminal benefits payable to petitioner, reckoning petitioner's last drawn monthly basic pay as Rs. 9,180/- (Rupees Nine thousand one hundred and eighty only) and pay the balance/arrears due thereunder to the petitioner with interest at the rate of 18% per annum from 1.6.2004 until date of payment;_ (ci) _(d) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondents to refund the petitioner, the sum of Rs. 1,62,290/- (Rupees One lakh sixty two thousand two hundred ninety only) deducted from his ex-gratia (VRS) benefit, with interest at the rate of 18% per annum from 1.6.2004 until date of payment.”_ While allowing WP(C) No.6833/2007 this Court directed “ _orders in this regard shall be passed and arrears due to the petitioner shall be disbursed, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment_ ”. It is true that the learned single Judge did not grant the prayer made W.P.(C) No.11228/2018 **==> picture [19 x 8] intentionally omitted <==** in the Writ Petition for payment of interest, though it was claimed. But the learned single Judge directed payment of entire terminal benefits within a period of two months. Ext.P2 judgment was rendered on 06.06.2011. Though it is true that the respondents filed Writ Appeal in 2011 the same was dismissed on 12.07.2017. Therefore, the claim of the petitioner for payment will be barred only upto the date referred to in Ext.P2 that is two months from the date of receipt of Ext.P2 judgment”. 6. Though the learned Standing Counsel vehemently argued that the petitioner cannot have any claim for interest in the light of principles of constructive resjudicata and he relied on the judgment of the apex court in _**The Direct Recruit Class-II Engineering Officers' Association and Ors. vs. State of Maharashtra and Ors. :**_ _**AIR 1990 SC 1607**_ (paragraph 35), I am of the view that the said contention will be applicable only for the claim of interest upto the period stipulated for payment in Ext.P2 judgment and not for further delay. I therefore find that there was no reason for denial of interest atleast from 01.10.2011. The respondents cannot dispute that the entire terminal benefits were due to the petitioner and the same was retained by the respondents. W.P.(C) No.11228/2018 **==> picture [19 x 8] intentionally omitted <==** Therefore the principle of constructive resjudicata would be applicable only with respect to the claim of the petitioner for interest for the period from 01.08.2004 to 01.10.2011. I am of the view that the petitioner has to be paid interest for the period from 01.10.2011 till the date of payment. Therefore, the Writ Petition is disposed of with a direction to the respondents to see that interest is paid on the sum of Rs.2,95,000/- for the period from 01.10.2011 to 28.11.2017 @ 7% per annum within a period of two months from the date of receipt of a copy of the judgment. The Writ Petition is disposed of accordingly. ## **Sd/-** ## **P.V.ASHA** rkc **JUDGE** ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**EXHIBIT P1**|**TRUE COPY OF THE JUDGMENT DATED 14/8/2006**| ||**IN WPC NO. 7815/05**| |**EXHIBIT P2**|**TRUE COPY OF THE JUDGMENT DATED 6/6/2011 IN**| ||**WPC NO.6833/2007**| |**EXHIBIT P3**|**TRUE COPY OF THE JUDGMENT DATED 12/7/2017**| ||**IN WA NO. 1241/11**| |**EXHIBIT P4**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**6/12/2017 OF THE PETITIONER TO THE FIRST**| ||**AND SECOND RESPONDENTS**| |**EXHIBIT P5**|**TRUE COPY OF THE JUDGMENT DATED 11/12/2017**| ||**IN WPC NO. 39785/17**| |**EXHIBIT P6**|**TRUE COPY OF THE PROCEEDINGS DATED**| ||**13/2/2018 OF THE 2ND RESPONDENT.**|