P. Abdul Kareem v. Kerala Water Authority

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942** ## **WP(C).No.25223 OF 2018(C)** ## **PETITIONER:** **P.ABDUL KAREEM, AGED 57 YEARS, S/O.LATE VEERANKUTTY, EMMERATHIYIL,PATTARATHIL HOUSE, NADUVATTOM (P.O.)., PATTAMBI (VIA), PALAKKAD - 679 308.** **BY ADV. SRI.U.BALAGANGADHARAN** ## **RESPONDENTS:** - **1 KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN,THIRUVANANTHAPURAM - 695 033.** - **2 EXECUTIVE ENGINEER, P.H.DIVISION, KERALA WATER AUTHORITY, PALAKKD - 678 001.** - **3 EXECUTIVE ENGINEER, P.H.DIVISION, KERALA WATER AUTHORITY, PATTAMBI - 679 303** - **4 EXECUTIVE ENGINEER P.H.DIVISION, KERALA WATER AUTHORITY, SHORNUR - 679 121** - **5 ASSISTANT EXECUTIVE ENGINEER P.H.SUB DIVISION, KERALA WATER AUTHORITY, SHORNUR - 679 121.** - **6 THE SUPERINTENDING ENGINEER P.H. CIRCLE, KERALA WATER AUTHORITY, PALAKKAD - 678 001.** **R1-6 BY SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.25223 OF 2018 2** ## **JUDGMENT** The petitioner says that he retired from the services of the Kerala Water Authority on 30.04.2017 as a Head Operator; but that his pensionary benefits had been denied to him, citing the reason that, subsequent to the retirement, an audit objection has been raised against him, namely Ext.P10 dated 23.08.2017, to the effect that certain benefits granted to him through fixation of Grades nearly 20 years ago were incorrectly made; and therefore, that the monetary benefits granted thereunder are liable to be recovered from him. 2. The petitioner says that Ext.P10 is egregiously improper since it has been issued more than 20 years after he had been granted the benefits mentioned therein and that nearly four months after he had retired from service, on attaining the age of superannuation. **WP(C).No.25223 OF 2018 3** 3. The petitioner asserts that, apart from the fact that he is entitled to the benefits which are objected to in Ext.P10, any recovery of the same is prohibited on account of the judgment of the Hon'ble Supreme Court in _**State of Punjab & Others**_ _**v. Rafiq Masih (White Washer) & Others**_ **[(2015) 4 SCC 334].** The petitioner, therefore, prays that Ext.P10 be set aside and that the Kerala Water Authority be directed to pay his eligible pensionary benefits within a time frame to be fixed by this Court. 4. Shri.P.Benjamin Paul, learned Standing Counsel for the Kerala Water Authority, in response to the afore submissions of the petitioner made by his learned counsel Shri.U.Balagangadharan, submitted that a counter affidavit has been filed on record, wherein, the following have been stated:- ## **WP(C).No.25223 OF 2018 4** “4. It is respectfully submitted that the petitioner Sri.Abdul Kareem has joined duty in the Department as CLR Operator on 18.07.1981. the details of CLR service as given below: 18.07.1981 to 31.12.1981 - 142 days 01.01.1982 to 31.12.1982 - 300 days 01.01.1983 to 31.12.1983 - 356 days 01.01.1984 to 31.03.1984 - 88 days While he was working as CLR Operator, the petitioner was advised by the KPSC District Office, Thrissur and appointed as Establishment Operator and joined duty in P.H. Sub Division, Wadakkanchery on 23.04.1988. 5. The petitioner is advised by the KPSC District Office, Thrissur and appointed as Estt Operator and not as CLR Operator, joined duty in P.H. Sub Division, Wadakkanchery on 23.04.1988 as per order No. KWA/HO/E5/2081/88 dated 11.04.88 of the Deputy Chief Engineer, KWA, Thiruvananthapuram. The petitioner successfully completed his probation on 23.04.90 FN as per proceedings No. E1-946/89 dated 20.12.1990 of the Executive Engineer, KWA, P.H. Division, Thrissur. The petitioner was transferred from Wadakkanchery to Shornur Sub Division on 13.09.1990. 6. As per Order No. KWA/HO/GL/10293/85 dated 02.05.1991 of the Managing Director, KWA, Thiruvananthapuram Sri. Abdul Kareem has been absorbed as NMR service with effect from 01.04.1984. This order date is 02.05.1991. But before this order he has already advised by the KPSC, Thrissur and joined duty as Estt Operator in P.H. Sub Division, Wadakkanchery on 23.04.1988. 7. As per final Audit of Service books and pension papers, it was reported that Sri. Abdul Kareem was not absorbed into Regular Establishment from NMR service. And reported that he is not under the preview of CLR-NMR-Regular Establishment Stream line. Hence there is no provision for sanctioning of TBHG by reckoning the CLR/NMR service along with PSC service as qualifying service for Time Bound Higher Grade. The copy of the letter received from Head Office regarding the above enclosed herewith. 8. The petitioner has been promoted as Head Operator with effect from 18.10.2007 as per Proceeding No. 3689/E5/2000/JB/KWA/TVM dated 18.10.2007 of Managing Director, KWA, TVM and he has completed 2 year of service in the Head Operator and the TBHG sanctioned. But on doing ## **WP(C).No.25223 OF 2018 5** final Audit by Head office of the Pension Wing prior to the sanction of Pension it was reported that the petitioner was not absorbed with regular establishment from NMR service and not under the preview of CLR NMR Regular Establishment stream line. He is advised by the KPSC and joined duty as Establishment Operator directly. And reported that as per Order G.O(MS)No. 254/87/LAD dated 19.11.1987, Circular No. KWA/HO/LS3/10956/86 dated 22.12.87 of Managing Director, KWA, TVM, and GO(P)No.6/91/PW & T dated 31.01.1991 there is no provision for sanctioning TBHG by reckoning CLR/NMR service along with PSC service as qualifying service for TBHG Grade. 9. Similarly in KWA the CLR service has been reckoning for sanctioning of TBHG under the preview of CLR/NMR Regular Establishment Stream line. But as per the direction from the Head Office it is stated that there is no Existing provision for sanctioning TBHG by reckoning CLR NMR along with PSC service qualifying same for TBHG as per Order No. GO(MS)No.254/87/LAD dated 19.11.1987, Circular No. KWA/HO/LS3/10956/86 dated 22.12.87 of Managing Director, KWA, TVM, and GO(P) No. 6/91/PW & T dated 31.01.1991. 10. Hence pay and allowances consequent on irregular sanction of TBHG/Fixation is to be recovered from the DCRG/Pension benefits. The petitioner was retired from the service on 30.04.2017 on superannuation.” 5. The learned Standing Counsel, therefore, prayed that this writ petition be dismissed. 6. When I examine the pleadings on record and go through the materials available, it is indubitable that all the benefits that had been granted to the petitioner, as regards grade promotions and **WP(C).No.25223 OF 2018 6** such other, were offered to him by the Kerala Water Authority without any cause that can be attributed to him and that too, nearly 20 years ago. The Kerala Water Authority never had a case, until he retired from their service, that these amounts are required to be recovered from him or that he is not eligible for the same. 7. Even though the Water Authority has an adscititious case that the petitioner had exercised an option which was not eligible to him, it is indubitable - even from the counter affidavit on record - that same had not been objected to until he retired from service, more than 20 years later. 8. Therefore, going by the judgment of the Hon'ble Supreme Court in _**Rafiq Masih (Supra)**_ it becomes irrefragable that no recovery can be now initiated against the ## **WP(C).No.25223 OF 2018 7** petitioner, particularly when the amount sought to be recovered had been paid to him validly more than twenty years ago and also because he has now retired from service. 9. This is more so because, there is not even a whisper in the counter pleadings that the benefits granted to the petitioner were on account of any wrong that had been committed by him or for any reason that can be found against him. 10. On the contrary, it is virtually admitted that all the now objected benefits had been granted to the petitioner based on valid approvals and sanctions and that he had no role in obtaining the same in whatsoever manner. Therefore, it is without doubt that the declarations of law in _**Rafiq Masih (Supra)**_ applies in all its force on the facts of this case. 11. In the afore circumstances, I see no reason that why this Court should enter **WP(C).No.25223 OF 2018 8** into the merits of the rival contentions of the parties as to the entitlement of the petitioner to the benefits which were given nearly 20 years ago, since it is obvious that, whatever be the decision this Court may take, any recovery from the petitioner at this point of time – more than 20 years after the benefits were given to him and four months after he retired from service – is impermissible, going by the declarations of law in _**Rafiq Masih (Supra).**_ In the afore circumstances, I order this writ petition and direct the competent Authority of the Water Authority to pay the petitioner all his retiral benefits _de hors_ Ext.P10, which shall be done not later than four months from the date of receipt of a copy of this judgment. ## **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** **MC/24.2.2021** **WP(C).No.25223 OF 2018 9** ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**EXHIBIT P1:**|**THE TRUE COPY OF THE PROCEEDINGS OF THE**| ||**DY.CHIEF ENGINEER (D & GL) NO.**| ||**KWA/HO/E5/2081/88 DATED 07/04/1988**| |**EXHIBIT P2:**|**TRUE COPY OF THE RELIEVING ORDER**| |**EXHIBIT P3:**|**TRUE COPY OF THE TRANSFER ORDER NO.A1**| ||**6215/90(I) DATED 09/08/1990 ISSUED BY THE**| ||**SUPERINTENDING ENGINEER, PUBLIC HEALTH**| ||**CIRCLR, K W A TRISSUR**| |**EXHIBIT P4:**|**THE TRUE COPY OF THE G.O.(MS) NO.5/91/LAD,**| ||**DATED 05/01/91**| |**EXHIBIT P5:**|**THE TRUE COPY OF THE ORDER DATED 02/08/1994**| ||**OF THE 4TH RESPONDENT**| |**EXHIBIT P6:**|**THE TRUE COPY OF THE PROCEEDINGS OF THE 5TH**| ||**RESPONDENT AS ORDER NO.E1-137/77 DATED**| ||**26/04/2005**| |**EXHIBIT P7:**|**THE TRUE COPY OF THE PROCEEDINGS OF THE 5TH**| ||**RESPONDENT AS ORDER NO.E1-187/77 DATED**| ||**28/09/2006**| |**EXHIBIT P8:**|**THE TRUE COPY OF THE PROCEEDINGS OF THE 4TH**| ||**RESPONDENT ORDER NO.PH/SRR/E1-176/03 DATED**| ||**05/11/2009**| |**EXHIBIT P9:**|**THE TRUE COPY OF THE PROCEEDINGS OF THE 5TH**| ||**RESPONDENTS AS ORDER NO.E1-187/77 DATED**| ||**17/01/2013**| |**EXHIBIT P10:**|**THE TRUE COPY OF THE INTIMATION LETTER**| ||**NO.KWA/AO (ESTT) PEN.9304/2017 ISSUED TO**| ||**THE 6TH RESPONDENT**| |**EXHIBIT P11:**|**THE TRUE COPY OF THE REPRESENTATION DATED**| ||**25/10/2017**| |**EXHIBIT P12:**|**THE TRUE COPY OF THE REPRESENTATION DATED**| ||**16/02/2018**| |**EXHIBIT P13:**|**THE TRUE COPY OF THE INFORMATION OBTAINED**| ||**TO THE PETITIONER THROUGH RIGHT TO**| ||**INFORMATION**| |**EXHIBIT P14:**|**THE TRUE COPY OF THE INTERIM ORDER IN**| **WP(C).No.25223 OF 2018 10** **WPC.NO.11636/2017** **EXHIBIT P15: THE TRUE COPY OF THE INTERIM DIRECTION IN WPC.NO.11636/2017** **EXHIBIT P16: THE TRUE COPY OF THE INTERIM ORDER DATED 02.08.2018 IN WP(C)NO.25223/2018 EXHIBIT P17: THE TRUE COPY OF THE COVERING LETTER DATED 04.08.2018 EXHIBIT P18: THE TRUE COPY OF THE ORDER NO.KWA/PHC/PKD/PEN/E1-1541/17 DATED 03.09.2018 EXHIBIT P19: THE TRUE COPY FO THE LETTER ENCLOSED ALONG WITH EXHIBIT P18**