T. Prabakaran v. State of Kerala and Kerala State Handloom Development Corporation Ltd.

## **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.3302 OF 2015(K)** ## **PETITIONER:** **T.PRABAKARAN, AGED 62, S/O.MAHADEVAN, RESHMI, POTHUVACHERY, KADACHIKAR, KANNUR - 670 621 (RETIRED PEON, HANVEEV).** **BY ADVS. SRI.P.C.SASIDHARAN SRI.E.S.ASHRAF SRI.ARAVINDA KUMAR BABU T.K. SRI.P.E.SAJAL** ## **RESPONDENTS:** **1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, INDUSTRIES (C) DEPARTMENT, THIRUVANANTHAPURAM - 695 001. 2 THE KERALA STATE HANDLOOM DEVELOPMENT CORPORATION LTD., REPRESENTED BY ITS MANAGING DIRECTOR, P.M.32/249, THILLERI ROAD, KANNUR - 670 001.** **BY ADVS.** **SRI.SUNIL KUMAR KURIAKOSE – GP SRI.M.GOPIKRISHNAN NAMBIAR – SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 3302/15 2 ## **JUDGMENT** While the petitioner was working as a Peon on provisional basis in the services of the 2nd respondent-Kerala State Handloom Development Corporation Ltd (hereinafter referred to as 'the HANVEEV' for short), he had requested that he be regularised in service, which finally culminated in Ext.P2 order of the Government directing the 'HANVEEV' to appoint him substantively, with effect from 01.01.2006, in the post of 'Packer', in an available vacancy and to allow him to continue in service thereafter. 2. The petitioner says that, thereafter, since he was thus regularised as a 'Packer', the 'HANVEEV' issued Ext.P3 proceedings dated 31.12.2010, informing him that since he had attained the age of 58 years, his services would end; and that he consequently, retired. 3. The petitioner says that, WPC 3302/15 3 subsequently, more than four years later, he was served with Ext.P7 proceedings, dated 29.12.2014, informing him that he had overdrawn an amount of Rs.1,32,013/- as salary during the period when he worked between 01.01.2006 and 31.12.2010 because, even though he was eligible to work only as a 'Packer', he had been given the benefits applicable to a Peon. He asserts that Ext.P4 is egregiously improper and prays that the same be set aside. 4. I have heard Sri.P.C.Sasidharan– learned counsel for the petitioner; Sri.Gopikrishnan Nambiar – learned Standing Counsel for the 2nd respondent and Sri.Sunil Kumar Kuriakose – learned Government Pleader for the 1st respondent. 5. I notice that a counter affidavit has been filed on record by the 1st respondent, wherein, they say that consequent to the regularisation of the petitioner as 'Packer' WPC 3302/15 4 |the benefits drawn by him until then, as a| |---| |Peon on provisional basis, would have had to| |be reduced. They say that, therefore, the| |HANVEEV was right in having issued Ext.P4| |order, requiring that the excess emoluments| |given to him be repaid. He, therefore, prayed| |that this Writ Petition be dismissed.| |6.<br>Sri.Gopikrishnan Nambiar – learned| |Standing Counsel for the 2<br>nd<br>respondent-| |HANVEEV, submitted that, as is evident from| |Ext.P2, the petitioner was directed to be| |appointed only as a Packer with effect from| |01.01.2006, but that he was allowed to| |continue as a Peon until he retired on| |31.12.2010. He submitted that, therefore, it| |is without any error that the HANVEEV issued| |Ext.P4 directing him to refund the excess| |amounts drawn by him.| |7.<br>When I evaluate the afore submissions,| |I cannot find favour with the respondents| WPC 3302/15 5 because, it is indubitable that the petitioner was granted the benefit of regularisation with effect from 01.01.2006 in the post of Packer through Ext.P2 order, which was issued on 10.02.2006. Obviously, therefore, the petitioner ought to have been reckoned as a Packer and granted the benefits in that position thereafter. However, pertinently, even though his services were terminated through Ext.P3, he was still shown as a Peon on provisional basis in the services of the HANVEEV; and he was told that his services have been terminated with effect from 31.12.2010, since he had attained the age of 58 years. It is thus limpid that even when Ext.P2 was issued regularising the services of the petitioner only as a Packer with effect from 01.01.2006, the HANVEEV chose to still consider him as a Peon and to pay him the eligible benefits entitled to the said post. WPC 3302/15 6 8. I cannot, therefore, find how the petitioner can be found at fault in having drawn any salary in excess of what he was entitled to – even if the facts alleged against him are taken to be true – and this is more so because Ext.P4 has been issued more than four years after he retired from service. 9. It does not require further expatiation that when the petitioner had retired over four years ago before Ext.P4 order had been issued, there was no employeremployee relationship subsisting and therefore, the HANVEEV could not have issued the said order asking to return the money which had been drawn by him in the post of Peon or Packer. 10. I cannot, therefore, find favour with Ext.P4 in any manner, particularly when the petitioner had worked based on Ext.P2 order; and if the HANVEEV had still reckoned him as a WPC 3302/15 7 Peon and paid him salary, one cannot see how he can be held responsible for the same. 11. That said, this is a fit case where the declarations of the Honourable Supreme Court in **State of Punjab v. Rafiq Masih (White** **Washer)** [2015(4) SCC 334] would apply in all its force because, what has now been sought to be recovered from him are the amounts while he was in service and that too after more than four years of his retirement. In the afore circumstances, I order this writ petition and set aside Ext.P4; making it clear that no recovery can be effected by the HANVEEV against the petitioner, based on the fact that he had been regularised in service as a Packer with effect from 01.01.2006, on the strength of Ext.P2 order. ## **Sd/-** ## **DEVAN RAMACHANDRAN** RR ## **JUDGE** WPC 3302/15 8 ## APPENDIX ||APPENDIX| |---|---| |PETITIONER'S/S|EXHIBITS:| |EXHIBIT P1|EXHIBIT P1. TRUE COPY OF THE| ||APPOINTMENT ORDER DATED 08.03.1983.| |EXHIBIT P2|EXHIBIT P2. TRUE COPY OF THE ORDER| ||DATED 10.02.2006.| |EXHIBIT P3|EXHIBIT P3. TRUE COPY OF THE| ||COMMUNICATION DATED 31.12.2010| ||TERMINATING THE SERVICE OF THE| ||PETITIOENR WHILE OFFICIATING IN THE| ||POST OF PEON.| |EXHIBIT P4|EXHIBIT P4. TRUE COPY OF THE| ||COMMUNICATION DATED 07.03.2011 FROM| ||THE 1ST RESPONDENT.| |EXHIBIT P5|EXHIBIT P5. TRUE COPY OF THE| ||COMMUNICATION DATED 04.07.2011.| |EXHIBIT P6|EXHIBIT P6. TRUE COPY OF THE| ||COVERING LETTER DATED 18.10.2014.| |EXHIBIT P6(A)|EXHIBIT P6(A). TRUE COPY OF THE| ||PROCEEDINGS DATED 17.10.2014| ||REGULARIZGING THE SERVICE OF THE| ||PETITIONER.| |EXHIBIT P7|EXHIBIT P7. TRUE COPY OF THE SAID| ||COMMUNICATION DATED 29.12.2014 ALONG| ||WITH WORKING SHEET OF SALARY| ||DIFFERENCE IN THE POST OF PEON AND| ||PACKER ISSUED TO THE PETITIONER.|