Suresh Kumar.K.P v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943** ## **WP(C).No.26848 OF 2020(E)** ## **PETITIONER:** **SURESH KUMAR.K.P AGED 57 YEARS S/O.K.K.PADMANABHAN, THAPOVANAM, ARAMKALLU, KARAKULAM P.O., NEDUMANGADU TALUK, THIRUVANANTHAPURAM, DISTRCT-695 564, HEAD OPERATOR, SUPERVISORY HIGHER GRADE (RETD), SEWERAGE SUB DIVISION, PATTOM, PLAMOODU, THIRUVANANTHAPURAM-695 004** **BY ADVS. SRI.GEORGE MATHEW SRI.M.D.SASIKUMARAN SHRI.PRAVEEN S. SMT.ELSA DENNY PINDIS SHRI.SUNIL KUMAR A.G SRI.DIPU JAMES SHRI.MATHEW K.T. K.V.GEORGE** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 KERALA WATER AUTHORITY (KWA) REP BY ITS MANAGING DIRECTOR, JALABHAVAN, THIRUVANANTHAPURAM-695 033** - **3 THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALABHAVAN, THIRUVANANTHAPURAM-695 033** - **4 THE DEPUTY CHIEF ENGINEER (HR AND GL), KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM-695 033** - **5 THE SUPERINTENDING ENGINEER, P.H.CIRCLE, KERALA WATER AUTHORITY, PATOOR, THIRUVANANTHAPURAM,-695 024** **WP(C).No.26848 OF 2020 2** - **6 THE FINANCE MANAGER AND CHIEF ACCOUNTS OFFICER, KERALA WATER AUTHORITY, HEAD OFFICE, JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 033** - **7 THE ACCOUNTS OFFICER, ESTABLISHMENT AND PENSION, KERALA WATER AUTHORITY, HEAD OFFICE, JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 033.** - **8 THE ASSISTANT EXECUTIVE ENGINEER, SEWERAGE SUB DIVISION, KERALA WATER AUTHORITY, PATTOM, PLAMOODU, THIRUVANANTHAPURAM-695 004** **R2-8 BY ADV. SMT.MARY BENJEMIN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.26848 OF 2020 3** ## **JUDGMENT** The petitioner says that he retired from the services of the 2[nd] respondent – Kerala Water Authority (KWA for short) on 30.04.2020 while working as a Head Operator. He has approached this Court alleging that his terminal benefits have not been disbursed to him even after seven months of his retirement and alleges that this is apparently because the Accounts Officer of the KWA has now issued Ext.P11 proceedings on 14.08.2019, saying that the Time Bound Higher Grade and pay revision benefits that were granted to him while he was in service was irregular and therefore, that the same is liable to be revoked, leading to deductions being effected from his pensionary benefits. 2. The petitioner says that Ext.P11 is egregiously improper and runs contrary to the declarations of law of the Hon'ble Supreme Court in _**State of Punjab & Others v. Rafiq Masih (White Washer) & Others [(2015) 4 SCC**_ **WP(C).No.26848 OF 2020 4** _**334].**_ The petitioner, therefore, prays that Ext.P11 be set aside and the KWA be directed to disburse to him all his retiral benefits at the earliest. 3. The petitioner has an alternative prayer that, Ext.P4 order - issued by the KWA in the year 2011, while he was in service, modifying the date of his First and Second Time Bound Higher Grades in the years 1998 and 2006 - is illegal and seeks that the same be also quashed. However, when this matter was called today, his learned counsel, Shri.George Mathew, submitted that his client is now accepting Ext.P4 and is giving up his contentions against the same; and thus prayed that his client's retiral benefits be directed to be paid to him _de hors_ Ext.P11. 4. Smt.Mary Benjamin, learned Standing Counsel appearing for the Kerala Water Authority, submitted that since the petitioner now accepts Ext.P4, her client may be permitted to pay him his retiral benefits, **WP(C).No.26848 OF 2020 5** based on the modification of the dates of the First and Second Time Bound Higher Grades effected through the said order and requested that the objections in Ext.P11 be also allowed to be taken into account. 5. When I hear Smt.Mary Benjamin as afore, though I find favour with the first limb of her submission, I am afraid that I cannot offer favour to the second one. This is because, the benefits of Time Bound Higher Grade and pay revisions had been given to the petitioner while he was in service, more than 15 to 20 years ago, under valid orders and sanctions from the KWA itself. 6. Obviously, therefore, going by _**Rafiq**_ _**Masih (Supra),**_ any recovery thereafter, on the ground that such sanctions were irregular, cannot be permitted, particularly when the KWA does not even whisper that the objected benefits were offered to the petitioner on account of any misrepresentation or fault committed by him ## **WP(C).No.26848 OF 2020 6** or for any reason that can be attributed to him. 7. This is more so because, the petitioner admittedly retired on 30.04.2020 and as has been cautioned by the Hon'ble Supreme Court, any recovery from him at this stage is impermissible. 8. As regards the first limb of the argument of Smt.Mary Benjamin, I find favour with her because, when Ext.P4 is accepted by the petitioner, then certainly his retiral benefits will have to be computed on its terms and in no other manner. 9. Before I close this judgment, I must also record an adscititious submission of Smt.Mary Benjamin, that the petitioner had given an undertaking that he is agreeable to refund all the objected amounts at the time when his retiral benefits are computed. 10. This submission certainly cannot be countenanced by this Court, since the undertaking referred to by Smt.Mary Benjamin ## **WP(C).No.26848 OF 2020 7** is, admittedly, one which was offered by the petitioner at the time when his pension papers were being processed, just prior to his retirement. 11. As this Court has already found in various judgments, including in W.P(C)No.16066 of 2020 and connected matters, an undertaking given by a person at the time of his retirement cannot be reckoned to be one that has been permitted by the Hon'ble Supreme Court in _**High Court of Punjab & Haryana & Others v. Jaydev Singh**_ **[(2016) 14** **SCC 267],** since it has been made clear therein that only such undertakings which are given at the time when the objected benefits had been granted, could be reckoned and not one which is obtained years later at the time when the employee retires. This submission, therefore, is repelled as being without merits. In the afore circumstances, I allow this writ petition and direct the competent ## **WP(C).No.26848 OF 2020 8** Authority of the KWA to pay the petitioner all his eligible retiral benefits _de hors_ Ext.P11; however, granting them liberty to compute the same based on Ext.P4 order. The afore exercise shall be completed by the competent Authority of the KWA and the eligible amounts disburse to the petitioner, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. This writ petition is thus ordered. ## **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** **MC/1/6.4.2021** **WP(C).No.26848 OF 2020 9** ## **APPENDIX OF WP(C) 26848/2020** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF NATIONAL TRADE CERTIFICATE NO.NCT(C3) 208620 DTD 23.08.1985 ISSUED TO PETITIONER BY NCVT** - **EXHIBIT P2 TRUE COPY OF ORDER NO.AB2-860/87 DTD 27.06.1987 ISSUED BY ASSISTANT EXECUTIVE ENGINEER, ATTINGAL** - **EXHIBIT P3 TRUE COPY OF ORDER E1.9783/87 DTD NIL 10.1994 ISSUED BY ASSISTANT EXECUTIVE ENGINEER, WATER WORKS CENTRAL SUB-DIVISION, THIRUVANANTHAPURAM** - **EXHIBIT P4 TRUE COPY OF ORDER E2.300/2004 DTD 28.03.2011 ISSUED BY ASSISTANT EXECUTIVE ENGINEER, WATER WORKS( NORTH SUB-DIVISION) KAWDIAR, THIRUVANANTHAPURAM** - **EXHIBIT P5 TRUE COPY OF ORDER NO.KWA/PHDN-T/A2-1635/09 DTD 24.03.2015 ISSUED BY EXECUTIVE ENGINEER** - **EXHIBIT P6 TRUE COPY OF ORDER E1-1495/2008 DTD 25.03.2015 ISSUED BY ASSISTANT EXECUTIVE ENGINEER, WATER WORKS( NORTH SUB-DIVISION) KAWDIAR, THIRUVANANTHAPURAM** **EXHIBIT P7 TRUE COPY OF ORDER AB1-33/2010 DTD 31.10.2019 ISSUED BY ASSISTANT EXECUTIVE ENGINEER, SEWERAGE SUB-DIVISION,PATTOOR, THIRUVANANTHAPURAM** - **EXHIBIT P8 TRUE COPY OF LPC DTD 05.05.2020 ISSUED BY ASSISTANT ASSISTANT ENGINEER, SEWERAGE PROJECT SECTION, THIRUVANANTHAPURAM** - **EXHIBIT P9 TRUE COPY OF LIABILITY CERTIFICATE ISSUED ON 12.,05.2020 BY ASSISTANT ENGINEER, SEWERAGE PROJECT SECTION, PLAMOODU, THIRUVANANTHAPURAM** - **EXHIBIT P10 TRUE COPY OF GRATUITY PAYMENT ORDER NO.19913 DTD 16.11.2020 ISSUED BY 7TH RESPONDENT** - **EXHIBIT P11 TRUE COPY OF ORDER NO.KWA/AO(ESTT)/PEN.10046/9088/446 DTD 14.08.2019 ISSUED BY 7TH RESPONDENT** **WP(C).No.26848 OF 2020 10** **EXHIBIT P12 TRUE COPY OF RELEVANT PAGES SERVICE BOOK OF PETITIONER.** **EXHIBIT P13 TRUE COPY OF PAY FIXATION STATEMENT AS PER GO.(P)NO.46/2007/WRD DTD.30/7/2007**