P. N. Sreedharan Nair v. Kerala Water Authority

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **&** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY,THE 23RD DAY OF JANUARY 2019 / 3RD MAGHA, 1940** **RP.No. 45 of 2019 IN WA. 1646/2018** **AGAINST THE ORDER IN I.A NO.2/2018 IN C.M.APPLN. NO.883/1018 IN WA 1646/2018 of HIGHCOURT** **REVIEW PETITIONER/S:** **P.N. SREEDHARAN NAIR** **MASTER DRILLER(RETD.) MECHANICAL SUB DIVISION, KWA, ALAPPUZHA.S/O.P.K.NARAYANAN NAIR, RAMACHANDRAN VILAS, KOTHALA.P.O, PAMPADY, KOTTAYAM-686502.** **BY ADV. SRI.M.P.KRISHNAN NAIR** ## **RESPONDENT/S:** **KERALA WATER AUTHORITY REP. BY ITS MANAGING DIRECTOR, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695033.** **R1 BY ADV. BENJAMIN PAUL, SC FOR THE KERALA WATER AUTHORITY.** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 23.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **2** ## **RP.No. 45 of 2019 IN WA. 1646/2018** ## **ORDER** ## P.R.Ramachandra Menon,J This review petition has been filed by the petitioner, against the order passed by this Court in I.A No.5/2018 dated 09.10.2018; by virtue of which, the delay was condoned, the appeal was admitted and an interim order of stay was granted for one month. 2. The crux of the averments raised in the review petition and the submissions made by the learned counsel for the petitioner is that, the version of the review petitioner, who is the respondent in the appeal, was not properly heard by this Court and the contentions in the counter affidavit filed, opposing the condonation of delay was not adverted to. We find it difficult to accept the said proposition, ## **RP.No. 45 of 2019 IN WA. 1646/2018** **3** by virtue of the sequence of events and also the actual state of affairs, which led to the said order. 3. The main contention raised by the appellant/ Kerala Water Authority is that the benefit sought for and obtained by the writ petitioner to continue upto 58 years and for such other benefits was absolutely without any right, by virtue of the relevant rules, since he was no longer continuing in the 'Worker category'. On passing the verdict by the learned Single Judge in favour of the writ petitioner, it was sought to be reviewed by filing a review petition and the delay involved was sought to be condoned by filing a petition supported by an affidavit. Unfortunately, the learned Single Judge did not condone the delay and accordingly, both the ## **RP.No. 45 of 2019 IN WA. 1646/2018** ## **4** petition to condone the delay, as well as the review petition came to be dismissed. This made the appellant/Water Authority to challenge the original verdict passed by the learned Single Judge, by filing the appeal with a petition to condone the total delay of 537 days (which includes the period subsequent to the judgment passed by the learned Single Judge as well). 4. Paragraph 4 of the affidavit in support of the application to condone the delay reads as follows: 4. It is humbly submitted that due to exigencies of service, the writ appeal could not be filed in time, there was also a change of standing counsel during that period. It is submitted that this is a case in which the respondent committed fraud upon this Hon'ble Court and obtained a favourable order. There is suppression of material facts also. This error was noticed by the authorities only when a contempt has been filed by ## **RP.No. 45 of 2019 IN WA. 1646/2018** ## **5** the respondent. During this period there was change of standing Counsel also and the appellant could not file a review or appeal in time. There after the appellants filed a review as RP No.940 of 2017 to review the impugned judgment. There is error apparent on the face of the judgment. The learned single judge ought to have allowed the delay condonation petition and also the review petition. But dismissed both. The appellant was vigilantly prosecuting the matter before the learned single judge in review. There is no wilful laches or negligence on the part of the petitioner in filing the appeal in time. The Water Authority has valid and substantial contentions in the writ appeal. If the judgment is sustained, the same will cause irreparable loss and injury to the Water Authority. The accompanying application for condonation of delay in filing the writ appeal may kindly be allowed. 5. When the matter came up for consideration, it is true that the prayer to condone the delay was opposed by the review petitioner by filing a counter ## **RP.No. 45 of 2019 IN WA. 1646/2018** ## **6** affidavit stating that there was no sufficient reason and also with respect to the merits on the part of the review petitioner. On 28.09.2018, Mr.M.P.Krishnan Nair, the learned counsel for the writ petitioner/respondent in the writ appeal asserted that there was absolutely no basis for the pleadings and submissions made by the appellant/Water Authority in disputing the status of the respondent (promoted as 'Master Driller') who was still a “Worker” as per the Recruitment Rules. It was in the said circumstance, that we passed an order on that day requiring the appellant to produce a full text of the Recruitment Rules to substantiate the grounds raised in the appeal to the effect that the post of 'Master Driller' to which promotion was given to the respondent/writ petitioner ## **RP.No. 45 of 2019 IN WA. 1646/2018** **7** (review petitioner herein) was not a Class IV post but a Class II(B) post. This is more so since, if there was any instance of fraud, as alleged, delay will never be a bar and further fraud, if proved, will vitiate everything, in view of the dictum laid down by the Apex Court in _**United India**_ _**Insurance Co. Ltd.**_ v. _**Rajendra Singh and Others [2000(3) SCC 581]**_ holding that 'Fraud and Justice do not co-exist'. The matter was listed for further consideration on different dates ie; on 04.09.2018, 05.09.2018, 13.09.2018, 25.09.2018 and on 09.10.2018 as well. All these occasions Mr.M.P.Krishnan Nair was representing the respondent in the appeal- the Kerala Water Authority and it was accordingly, that the matter was heard on 09.10.2018. ## **RP.No. 45 of 2019 IN WA. 1646/2018** ## **8** 6. In the meanwhile, the appellant Water Authority had produced a full text of the Recruitment Rules along with I.A No.5/2018, as **Annexure-A** and the same was taken to the file, allowing the I.A on 09.10.2018. It was thereafter that the matter was considered and both the sides were heard in detail and as specifically observed in paragraph 4 of the order 09.10.2018. In the light of 'Annexure A' Recruitment Rules, we found it appropriate to have the matter considered on merits, after condoning the delay and it was accordingly, that the delay was condoned as noted in 'paragraph 6' of the order. Since both the sides were present and since nobody else was to be heard, we thought it appropriate to have the writ appeal admitted, which was admitted on the same ## **RP.No. 45 of 2019 IN WA. 1646/2018** **9** day, also granting an interim stay for a period of one month. The proceedings reveal that the matter had come up for further consideration before another Bench of this Court, on 07.11.2018. The proceedings do not reveal that the extension of interim order was ever opposed by the review petitioner and hence the interim order was extended by the said Bench on 07.11.2018. It is thereafter, that the review petitioner has chosen to file this review petition, seeking for recalling the order dated 09.10.2018. 7. The course and events clearly reveal that this Bench was very much satisfied with the explanation and thought it appropriate to cause the merit to be considered, as the benefit claimed for and obtained by the review petitioner was ## **RP.No. 45 of 2019 IN WA. 1646/2018** ## **10** stated as contrary to the relevant Recruitment Rules. If it were a mistake or if it involved any instance of fraud, it had to be corrected at the earliest and this can be done only after hearing both the sides in detail, as to the merits involved in the appeal; which made this Court to admit the appeal, also granting the interim order of stay. 8. It is also to be noted that the delay on the part of the Government/ Governmental authorities has to be considered in a wider perspective, in view of the law declared by the Apex Court in _**Special Tahsildar, Land Acquisition Kerala**_ v. _**K.V. Ayisumma [1996 (10) SCC 634]**_ . It has also been made clear by the Apex Court as per the decision in _**Balakrishnan**_ v. _**M.Krishnamurthy [1998 (7) SCC 123]**_ that the ## **RP.No. 45 of 2019 IN WA. 1646/2018** ## **11** delay of 800 days involved in the said case was liable to be condoned, holding that, what matters more is not the extent of delay, but the explanation. In the instant case, the explanation offered by the appellant was found as acceptable to this Court and it was accordingly, that the delay was condoned, deciding the merits to be considered in view of the relevant Recruitment Rules. 9. The present attempt of the review petitioner is an abuse of the process of court. The appeal is still pending. It was always open, and still open for the review petitioner to file appropriate proceedings, opposing extension of the interim order, if it is not liable to be sustained in view of the Recruitment Rules produced. Instead of doing that, the petitioner has chosen to ## **RP.No. 45 of 2019 IN WA. 1646/2018** ## **12** |approach this Court by filing review| |---| |petition<br>against<br>the<br>order<br>dated| |09.10.2018, which is not liable to be| |entertained either on facts or on law, as| |there is no error apparent on the face of| |the record.| |In the said circumstance, the review| |petition stands dismissed with a cost of| |Rs.10,000/- (Rupees ten thousand only). The| |cost shall be paid to the Chief Minister's| |Disaster Relief Fund, within one month from| |the date of receipt of a copy of this| |order.| **Sd/-** ## **P.R.RAMACHANDRA MENON** ## **JUDGE** ## **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** SB/24.01.2019 **RP.No. 45 of 2019 IN WA. 1646/2018** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **CERTIFIED COPY OF ORDER DATED 09/10/2018 IN C.M.APPL.883/18 AND W.A.NO.1646/2018.** ## **RESPONDENTS EXTS.: NIL** **// TRUE COPY //** **P.A TO JUDGE**