P. M. Salim v. Kerala Water Authority & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 27[TH] DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945`** ## **`WP(C) NO. 13033 OF 2023`** ## **`PETITIONER:`** ``` P.M.SALIM AGED60YEARS S/OMEETHIAN,RESIDINGATPIRAMBILLYKUDYHOUSE, - VENGOLAP.O,ARAKKAPADY,ERNAKULAM683556 (HEADOPERATOR,KWARETIREDON31/5/2018) BYADVS. ThomaskuttyM.A. ASHACHERIAN(K/000086/1994) ``` ## **`RESPONDENTS:`** |`1`|`KERALA WATER AUTHORITY`| |---|---| ||`REP. BY THE MANAGING DIRECTOR, JALA BHAVAN,`| ||`VELLAYAMBALAM THIRUVANANTHAPURAM, PIN - 695010`| |`2`|`ASSISTANT EXECUTIVE ENGINEER`| ||`P.H. SUB DIVISION OFFICE, KERALA WATER AUTHORITY,`| ||`PERUMBAVOOR, ERNAKULAM DISTRICT, PIN - 683542`| |`3`|`EXECUTIVE ENGINEER`| ||`P.H DIVISION OFFICE, KERALA WATER AUTHORITY,`| ||`PERUMBAVOOR, ERNAKULAM DISTRICT, PIN - 683542`| |`4`|`SUPERINTENDING ENGINEER`| ||`P.H. CIRCLE OFFICE, KERALA WATER AUTHORITY, KOCHI,`| ||`ERNAKULAM DISTRICT, PIN - 682016`| ``` SRI.PMJOHNY,SCFORKWA ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFOR ADMISSIONON27.10.2023,THECOURTONTHESAMEDAY DELIVEREDTHEFOLLOWING: ``` W.P.(C) No.13033 of 2023 2 ## **JUDGMENT** The petitioner entered into service of the Kerala Water Authority on 1.8.1987 as an Operator on a daily wage basis. He states that his service was later regularised, and regular pay scale was granted to him with retrospective effect from the initial date of appointment, as is evident from Ext.P1 order. He states that on the cover of Ext.P1, all service benefits, including Time Bound Higher Grade and Pay Revision benefits, were granted to the petitioner, counting his service from the initial date of appointment, ie., 1.8.1987. He states that after rendering service for more than 3 decades, he attained superannuation on 31.5.2018 while functioning as Head Operator. 2. The petitioner asserts that after about 2 years of his retirement, the regularisation of the service of the petitioner from 1.8.1987 was modified as 1.1.1988, and service benefits such as pay, increment, grade promotion, pay revision, etc., granted to the petitioner with effect from 1.8.1987 was reduced to his disadvantage by Ext.P3 order. After the issuance of Ext.P3, the petitioner is being disbursed reduced pay, monthly pension, and pensionary benefits. He contends that the benefits of regularisation, which was granted to the petitioner more than three decades back, could not have been withdrawn on the W.P.(C) No.13033 of 2023 3 strength of Exts.P3 and P4 orders. He asserts that though Ext.P5 representation was submitted, the same was rejected by Ext.P7 order, ordering the petitioner to pay back excess amount which was disbursed to him from his gratuity. It is the case of the petitioner that the action taken by the respondents cannot be sustained under law. He would contend that persons similarly placed as the petitioner had approached this Court, and after considering identical issues, a learned Single Judge of this Court by Ext.P10 judgment had quashed the orders and directed the respondents to disburse the entire retirement benefits reckoning the earlier daily wage service. The petitioner asserts that the petitioner is also entitled to similar orders. It is on these assertions that this Writ petition is filed seeking the following reliefs: i) To issue a writ of certiorari calling for the records leading to Exhibits P3 order and quash the same. ii) To issue a writ of mandamus or any other writ, order or direction directing the respondents to restore the pay and other service benefits already granted to the petitioner while in service from 1.8.1987 upto his retirement, but which was reduced after his retirement by Exhibit P3 order. iii) Or in the alternative issue a writ of mandamus or any other writ, order or direction directing the 1st respondent to re-consider and pass orders on Exhibit P5 representation of the petitioner in the light of Exhibits P1, P8 and P9 orders and P10 judgment within a time limit fixed by this Honourable Court, with notice to the petitioner. iv) To issue a writ of mandamus or other appropriate writ, direction or order directing the respondents to sanction and disburse W.P.(C) No.13033 of 2023 4 Pension, DCRG and Commuted Value of Pension to the petitioner, treating his Average Emoluments as Rs.69,800/- and also reckoning his qualifying service as 31 years. 3. A counter affidavit has been filed by the respondents, controverting the contentions of the petitioner. It is asserted that during the final audit of the service book by the Accounts Officer, objection was raised on the reckoning of earlier service of the petitioner on a daily wage basis for Time Bound Higher Grades as Daily Wage service is excluded from all service benefits. It was on account of the same that his service benefits were revised, and orders were issued to recover a sum of Rs.84,025/- being the excess pay drawn by the petitioner. 4. I have considered the submissions advanced. 5. From the records made available before this Court, I find that by Ext.P1 order, the initial appointment of the petitioner on a Daily wage basis was regularised, and he was granted pay on a Scale of Pay basis. I find that the benefits due to the petitioner were granted to him more than three decades back. The same was revised by Exts.P3 and P4 orders in the year 2020 that too after two years of his retirement. 6. In **State of Punjab v. Rafiq Masih (White Washer)** [(2015) 4 SCC 334], the Apex Court had occasion to postulate the situations of hardship that would govern employees on the issue of W.P.(C) No.13033 of 2023 5 recovery, where payments have mistakenly been made by the employer, in excess of his entitlement. After balancing the conflicting claims and the hardship that is likely to be caused, the Hon’ble Supreme Court had summarised the situations wherein recovery of the amounts by the employers would be impermissible under law. It was held as follows in paragraph No. 18 of the judgment. **18.** It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: - (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). - (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. - (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. - (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. - (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover. W.P.(C) No.13033 of 2023 6 7. There is no dispute that the petitioner falls in the lower rung of the service and the recovery is being effected for excess payment made initially about two decades back and thereafter. This is not a case wherein the petitioner had knowledge that the payment received was in excess of what was due. There is no case that there was any misrepresentation or fraud on the part of the petitioner. As held by the Apex Court, when payments have been made for a long duration of time, the logic of recovery of the excess amount paid would be iniquitous, arbitrary, violative of Article 14 of the Constitution of India. There cannot be any doubt that it would be next to impossible for a person such as the petitioner to bear the financial burden of a refund of payment received wrongfully for a long span of time as he would have spent the emoluments that he would have received for the upkeep of his family under the bonafide belief that he is entitled to the said amount. In that view of the matter, recovery of amounts ordered as per Ext.P3 at this point of time after the petitioner has retired from service would result in extremely harsh consequences. 8. In that view of the matter, I am of the considered opinion that the petitioner is entitled to succeed. Exts.P3 and P4 will stand quashed. There will be a direction to the respondents to restore the pay and other service benefits already granted to the petitioner while in W.P.(C) No.13033 of 2023 7 service on and from 1.8.1987 up to his retirement. The respondents shall rework for sanctioning and disbursing the Pension, DCRG, and Commuted Value of Pension on the basis of the actual last drawn pay of the petitioner without adverting to Exts.P3 and P4. Needful shall be done within a period of three months. ``` Sd/- ``` **RAJA VIJAYARAGHAVAN V JUDGE** ``` IAP ``` W.P.(C) No.13033 of 2023 8 ## **`APPENDIX OF WP(C) 13033/2023`** ``` PETITIONER’SEXHIBITS: ``` - `Exhibit P1 TRUE COPY OF THE ORDER NO.E1-93/87 DATED 18/2/1991 OF THE 3RD RESPONDENT EXECUTIVE ENGINEER` - `Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF THE PETITIONER` - `Exhibit P3 TRUE COPY OF THE ORDER DATED 4/4/2020 OF THE 2ND RESPONDENT ASSISTANT EXECUTIVE ENGINEER` - `Exhibit P4 TRUE COPY OF THE GRATUITY PAYMENT ORDER NO. KWA/AO (PEN)/PEN:9734/COM: (NON` - `MEDICAL)/8783 DATED 22/9/2020 IN RESPECT OF THE PETITIONER` - `Exhibit P5 TRUE COPY OF THE REPRESENTATION DATED 19/11/2020 OF THE PETITIONER SENT TO THE 1ST RESPONDENT` - `Exhibit P6 TRUE COPY OF THE JUDGMENT DATED 3/2/2021 IN WP(C) NO.2724/2021 OF THIS HONOURABLE COURT` - `Exhibit P7 TRUE COPY OF THE ORDER NO.14131/E5/2021/KWA DATED 27/12/2021 OF THE 1ST RESPONDENT` - `Exhibit P8 TRUE COPY OF GOVERNMENT ORDER G.O.(P) NO. 10/2021/WRD DATED 31/3/2021` ``` ExhibitP9TRUECOPYOFGOVERNMENTLETTERNO. WSB3/7/2022WRDDATED12/4/2022 ``` ``` ExhibitP10TRUECOPYOFTHECOMMONJUDGMENTOFTHIS HONOURABLECOURTDATED26/2/2021INWP(C) NO.8670/2020 ``` W.P.(C) No.13033 of 2023 9 ``` ExhibitP11 ``` ``` TRUECOPYOFPROCEEDINGSDATED18.02.1991 OFTHEEXECUTIVEENGINEER,P.H.DIVISION, PERUMBAVOOR. ``` ``` ExhibitP12TRUECOPYOFTHEORDERNO.17337/F3/2018/KWA DATED26.07.2023OFTHE1STRESPONDENT. ``` ``` RESPONDENTS’EXHIBITS: ``` ``` Exhibit-R1(a)TRUECOPYOFTHEORDERNO.E1/93/87,DATED 18/2/1991,ISSUEDBYTHEEXECUTIVE ENGINEER,PHDIVISION,PERUMBAVOOR. ``` ``` Exhibit-R1(b)TRUECOPYOFTHEORDERNO.E1-5/82,DATED 31/12/1995,THEEXECUTIVEENGINEER,PH DIVISION,PERUMBAVOOR. ``` ``` Exhibit-R1(c)TRUECOPYOFTHEWRITTENCONSENTOFTHE PETITIONERDATED18/10/16,1/3/12AND 12/9/2007 ```