Suresh Babu T.S. and Others v. Kerala Water Authority and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **FRIDAY, THE 09TH DAY OF APRIL 2021/19TH CHAITHRA, 1943** ## **WP(C).No.11636 OF 2017(D)** ## **PETITIONERS:** |**1**|**SURESHBABU T.S., AGED 54 YEARS,**| |---|---| ||**S/O. T.K.SIVARAMAN VAIDIAN,THATTAN VEEDU,**| ||**KAVALAMUKKATTA P.O., NILAMBOOR.**| |***2**|**PRASANNA V.P, AGED 47 YEARS**| ||**W/O LATE SURESHBABU T.S, THATTAN VEEDU,**| ||**PERINCHOORIL, POOKKOTTUMPADAM PO,**| ||**MALAPPURAM DISTRICT-679332.**| |***3**|**ARJUN BABU T.S, AGED 24 YEARS**| ||**S/O LATE SURESHBABU T.S, THATTAN VEEDU,**| ||**PERINCHOORIL, POOKKOTTUMPADAM PO,**| ||**MALAPPURAM DISTRICT-679332.**| |***4**|**ARUN BABU, AGED 19 YEARS**| ||**W/O LATE SURESHBABU T.S, THATTAN VEEDU,**| ||**PERINCHOORIL, POOKKOTTUMPADAM PO,**| ||**MALAPPURAM DISTRICT-679332.**| ||**(*ADDL RESPONDENTS 2 TO 4 ARE IMPLEADED**| ||**AS PER ORDER DATED 16.01.2018 IN I.A.394/18)**| ||**BY ADV. SMT.R.PADMAKUMARI**| ## **RESPONDENTS:** |**1**|**KERALA WATER AUTHORITY**| |---|---| ||**REPRESENTED BY ITS MANAGING**| ||**DIRECTOR,THIRUVANANTHAPURAM - 695 001.**| |**2**|**EXECUTIVE ENGINEER, PH DIVISION,**| ||**KERALA WATER AUTHORITY, MALAPPURAM - 676 505.**| |**3**|**ASSISTANT EXECUTIVE ENGINEER**| ||**PH SUB DIVISON, KERALA WATER AUTHORITY,**| ||**MAJERY - 676 121.**| WPC 11636/17 2 **4 ASSISTANT EXECUTIVE ENGINEER PH SUB DIVISION, KERALA WATE AUTHORITY, PERINTHALMANNA - 679 322.** **BY ADVS. SRI.MILLU DANDAPANI, SC SRI.BIJILY JOSEPH – SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 11636/17 3 ## **JUDGMENT** This Writ Petition was originally filed by Sri.T.S.Suresh Babu, who unfortunately died pending this _lis_ . His legal heirs, therefore, impleaded themselves as additional petitioners, thus pursuing the case of late T.S.Suresh Babu. 2. I will first record the apercus of the facts as disclosed from the pleadings. 3. Late Sri.T.S.Suresh Babu was appointed through the Employment Exchange on daily wages in the services of the Kerala Water Authority (KWA for brevity hereinafter). At the time when he joined service, the Public Health Engineering Department was alone in existence and that the establishment was, thereafter, transferred to the KWA from 01.04.1984, when it was constituted. 4. Sri.T.S.Suresh Babu has averred that while he was so serving, through an order WPC 11636/17 4 dated 22.11.1999, he was granted First Time Bound Higher Grade Promotion, on completion of 10 years with effect from 10.04.2000; but that as per a subsequent order issued by the 2nd respondent, the said benefit was sanctioned to him with effect from 10.04.1995, modifying the earlier date of 10.04.2000. He further avers that therefore, he was enjoying the said benefit for the last more than 25 years and that he was also given the Second Time Bound Higher Grade on completion of 18 years in the entry post, with effect from 10.04.2003. 5. It was the specific case of Late Sri.T.S.Suresh Babu that all the afore benefits had been granted to him by the KWA without any misrepresentation or fraud which can be attributed to him; but that on the eve of his retirement on 31.07.2017, the Executive Engineer, PH Division, Malappuram, issued Ext.P11 order reassigning the date of his WPC 11636/17 5 First Time Bound Higher Grade with effect from 10.04.2000, as it was originally done. He has averred that the only reason in Ext.P11 for the KWA to do so was that he was not eligible for reckoning the period when he served as a CLR employee, since he was not included in the CLR-NMR–Regular Establishment Scheme and that only employees in the said scheme are eligible for reckoning their said service for the grant of Higher Grade. He thus contended that Ext.P11 is egregiously improper since, the benefits that had been given to him more than 25 years ago have been attempted to be taken away and that this is contrary to the declarations of the Honourable Supreme Court in **State of Punjab v. Rafiq Masih (White Washer)** [2015(4) SCC 334]. He thus prayed in this Writ Petition that Ext.P11 be set aside and the competent respondent be directed to give him all his service and retiral benefits WPC 11636/17 6 _de hors_ the said order. 6. The afore submissions made on behalf of the petitioners by their learned counsel Smt.R.Padmakumari, was resisted by the learned Standing Counsel for the KWA - Shri.Bijily Joseph, saying that all which is been done through Ext.P11 order is to rectify a mistake that was committed by the KWA in the year 2000. He submitted that even though late T.S.Sureshbabu was originally given his First Time Bound Higher Grade only with effect from 10.04.2000, it was reassigned incorrectly by assigning the date as being 10.04.1995, taking into account the service rendered by him as a CLR worker and that this was not permissible to him, leading to Ext.P11 order being issued, prior to his retirement, to withdraw such benefits. He, therefore, prayed that this writ petition be dismissed. 7. I have considered the afore WPC 11636/17 7 submissions and I have also examined the materials available on record. 8. Even going by the conceded stand of the KWA, late T.S.Sureshbabu was initially given his First Time Bound Higher Grade with effect from 10.04.2000 and this was reassigned, without any application having been made by him and without any reason that can be attributed to him, as 10.04.1995, by giving him the benefit of his CLR service also. 9. Late T.S.Sureshbabu thereafter, obtained his Second Time Bound Higher Grade with effect from 10.04.2003, on completion of 18 years in the entry post; and he finally retired from service on 31.07.2017. It is preparatory to his retirement, when his service book was examined by the KWA for computing his pensionary benefits, that Ext.P11 order appears to have been issued, WPC 11636/17 8 alleging that he was not entitled to the Time Bound Higher Grades as mentioned above, taking into account his CLR service, since he was not included in the “CLR – NMR – Establishment Stream”. 10. I am afraid that this stand of the KWA can never appeal to this Court, particularly in view of the judgment of the Hon'ble Supreme Court in _**Rafiq Masih (Supra),**_ which has made it absolutely indubitable that no such recovery is permissible from an employee just prior to his retirement, especially when the objected benefits are ones which were validly granted to him without any misrepresentation or fraud or vitiating reasons that can be attributed to him/her. 11. In the case at hand, there is not even a whisper in the pleadings of the KWA, that the reassignment of the date of grant of WPC 11636/17 9 the First Time Bound Higher Grade to late T.S.Sureshbabu on 10.04.1995 was on account of any fault on his part; and on the contrary, it is conceded that he was given the said benefit, as also his Second Time Bound Higher Grade with effect from 10.04.2003 through valid orders, in the issuance of which he had no role, in any manner. Since the KWA does not dispute that the afore benefits were offered to late T.S.Sureshbabu under valid orders, which were issued by the competent Authority at the relevant time and which was, admittedly, not based on any undertaking by him that they will be entitled to recover the same, if it is found to be erroneous thereafter, I am certain that the declarations in _**Rafiq Masih (Supra)**_ applies in its full force; while the KWA cannot obtain the benefit of the subsequent judgment of the Hon'ble Supreme WPC 11636/17 10 Court in _**High Court of Punjab & Haryana & Others v. Jaydev Singh**_ [(2016) 14 SCC 267] **.** This is more so because Ext.P11 order has been issued a few months before late T.S.Sureshbabu had retired from service. In the afore circumstances, I allow this writ petition and set aside Ext.P11; with a consequential direction to the KWA to disburse all the retiral benefits eligible to late T.S.Sureshbabu to his legal heirs, namely petitioners 2 to 4, as expeditiously as is possible, but not later than four months from the date of receipt of a copy of this judgment. This writ petition is thus ordered. ## **Sd/-** ## **DEVAN RAMACHANDRAN** RR/MC ## **JUDGE** WPC 11636/17 11 ## APPENDIX ## PETITIONER'S/S EXHIBITS: EXHIBIT P1 THE TRUE COPY OF THE RELIEVING ORDER. EXHIBIT P2 THE TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENTS AS ORDER NO.E1631/86 DATED 19.5.2000. EXHIBIT P3 THE TRUE COPY OF THE LETTER NO. KWA/JB/E5/7333/99 DATED 09.2.2000 FROM THE 1ST RESPONDENT TO THE CHIEF ENGINEER, KERALA WATER AUTHORITY, NORTHERN RGION, KOZHIKODE. EXHIBIT P4 THE RUE COPY OF THE REPORT DATED 01.9.2007 GIBEN FROM ACCOUNTS OFFICER FROM THE OFFICER OF THE SUPERINTENDING ENGINEER, PH CIRCLE, MALAPPURAM TO THE 2ND RESPONDENT. EXHIBIT P5 THE TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT AS ORDER NO.E13745/77 VOL.IV DATED 31.12.2007. EXHIBIT P6 THE TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT AS ORDER NO.E13745/77 VOL.V DATED 18.6.2008. EXHIBIT P7 THE TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENTS AS ORDER NO. E1146/91 VOL.IV DATED 09.7.2008. EXHIBIT P8 THE TRUE COPY OF THE ORDER NO. E13745/77 VOL.IV(2) DATED 23.6.2011 OF THE 2ND RESPONDENT. EXHIBIT P9 THE TRUE COPY OF THE ORDER NO.E1140/91/VOL./V(2) DATED 10.8.2011 OF THE 3RD RESPONDENT. EXHIBIT P10 THE TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT AS ORDER NO.E1 - 3745/77 VOL.V DATED 19.3.2015. WPC 11636/17 12 EXHIBIT P11 THE TRUE COPY OF THE ORDER NO.E13745/77 VOL.V DATED 04.8.2016 OF THE 2ND RESPONDENT.