T.K. Sugunan v. Kerala State Electricity Board Limited and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Sathish Ninan, J.
Judgment Date: 2024-04-09
Court Decision / Holding: (i) The challenge against Ext.P9 is declined. (ii) It is held that the petitioner is not entitled for the benefit of the Pay Revision of 2003. (iii) No further recovery of the amounts already paid to the petitioner reckoning the pay revision of the year 2003 shall be effected. (iv) The amounts recovered from the petitioner as indicated in Ext.P16 shall be refunded to the petitioner within a period of one month from today.
Final Disposition: Writ petition disposed of

Parties to the Case

Appellants / Petitioners

T.K. Sugunan

Respondents

The Kerala State Electricity Board Limited
The Chief Engineer (HRM), Vydyuthi Bhavan, Pattom Post, Thiruvananthapuram-4
The Chief Engineer, Office of the Chief Engineer, Central Zone, Ernakulam
The Deputy Chief Engineer, Electrical Circle, Thodupuzha
The Executive Engineer, Office of the Executive Engineer, Electrical Division, Thodupuzha

Legal Representation & Advocates

Counsels for Petitioners

• Sri P. T. Dinesh
• Sri Joseph Jose Mannar

Counsels for Respondents

• Sri M.K. Thankappan, Senior Counsel, Kerala State Electricity Board Limited

Case Synopsis & Summary

This writ petition questions whether the petitioner, a Mechanic Grade III with the Kerala State Electricity Board (KSEB), is entitled to pay revision benefits that came into force during his suspension and the impact on pension/recovey proceedings. The petitioner was suspended in 2001 after a criminal case under Section 376 IPC and retired in 2005 during suspension. In 2007 he was acquitted by the Sessions Court, and Ext.P6 required him to elect how the suspension period should be treated (as eligible leave or otherwise). The petitioner contends Ext.P7, dated 23.12.2007, was a reply seeking regularisation of the suspension as eligible leave. Ext.P9, dated 18.01.2008, treated the period as suspension itself. The Board later allowed a pay revision for 2003 but sought recovery for excess payments and indicated pension revisions in 2008, while denying 2003 revision. The petitioner approached the Court in 2017 challenging Ext.P9 and the denial of 2003 revision. The Court found no credible evidence of Ext.P7, held Ext.P9 to be unchallengeable due to laches and non-response to Ext.P6, and refused relief for 2003 revision. It also held that mistaken payments need not be recovered, citing State of Punjab v. Rafiq Masih, and ordered refund of amounts already recovered while denying 2003 revision.

Provisions of Law Cited

Section 376 IPC

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext.P6 required him to elect how the suspension period should be treated and Ext.P7’s reply sought to regularise the suspension as eligible leave. Since the Board later treated the period as suspension, the petitioner seeks the 2003 pay revision and asserts it should be applicable. He argues laches should not bar relief and that refund of mistaken payments should be allowed in light of pension implications.

Contentions of Respondents

The Board argues that there is no admissible Ext.P7 reply; Ext.P6 required a response, and Ext.P9 (18-01-2008) rightly treated the period as suspension. Since the writ petition was filed after a long delay, it is barred by laches and delay. The Board maintains the petitioner was not in regular service during 2003 and thus not entitled to the pay revision; any mistaken payments have to be adjusted by proper accounting.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Punjab v. Rafiq Masih (White Washer)	2015 (1) KLT 429 (SC)	Positive	The court cites this Apex Court decision to support the view that mistaken payments made to a retired employee need not be recovered and that refund of amounts already paid is permissible.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 9[TH] DAY OF APRIL 2024 / 20TH CHAITHRA, 1946** ## **WP(C) NO. 27658 OF 2017** ## **PETITIONER:** **T.K.SUGUNAN, AGED 62 YEARS, S/O.KUMARAN (LATE), POTTAYIL HOUSE, KURUPUMTHARA, MANJOOR PO, KOTTAYAM DISTRICT, PIN-686603.** **BY ADVS. SRI.P.T.DINESH SRI.JOSE JOSEPH MANNAR** ## **RESPONDENTS:** - **1 THE KERALA STATE ELECTRICITY BOARD LIMITED, REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVAN, PATTOM POST, THIRUVANANTHAPURAM-4.** - **2 THE CHIEF ENGINEER (HRM), VYDYUTHI BHAVAN, PATTOM POST, THIRUVANANTHAPURAM-4.** - **3 THE CHIEF ENGINEER, OFFICE OF THE CHIE ENGINEER, CENTRAL ZONE, DH ROAD, ERNAKULAM-682016.** - **4 THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, THODUPUZHA-685 584.** **WP(C) NO. 27658 OF 2017 -2-** **5 THE EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, THODUPUZHA-685 584.** **BY ADVS. SRI.M.K.THANKAPPAN, SC, KERALA STATE ELECTRICITY BOARD LIMITED** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON 09.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = W.P.(C) No.27658 of 2017 = = = = = = = = = = = = = = = = = = Dated this the 9[th] day of April, 2024** ## **J U D G M E N T** The issue involved in this writ petition relates to the entitlement of the petitioner for the benefits of the pay revision which came into force during the period while he was under suspension and the consequent recovery proceedings. 2. The petitioner was employed as Mechanic GradeIII in the first respondent KSEB. While so, as per Ext.P1 dated 05.11.2001 he was placed under suspension pending disciplinary proceedings. A crime was registered against him under Section 376 IPC. While under suspension he retired from the services on 31.03.2005. 3. On 02.06.2007, the Sessions Court acquitted the petitioner. As per Ext.P6 the petitioner was also acquitted from the charges leveled in the disciplinary proceedings. Ext.P6 further required the petitioner to W.P.(C) No.27658 of 2017 **==> picture [34 x 9] intentionally omitted <==** opt for regularisation of the period of suspension as eligible leave, failing which the period was to be treated as one under suspension. 4. Stating that the petitioner failed to exercise his option as was required under Ext.P6, the Board issued Ext.P9 proceedings dated 18.01.2008 treating the period of suspension as suspension itself. 5. Noticing that the petitioner was granted the benefit of pay revision 2003, that is the period during which he was under suspension, the Board issued Ext.P16 communication with regard to recovery of excess payment. On the complaint of the petitioner, the Board as per Ext.P22 dated 19.02.2016 informed the petitioner that he was granted the benefit of revision of pension in accordance with the pay revision of the year 2008, but that he is not entitled for the benefit of the pay revision of the year 2003 while he was under suspension. It is accordingly that the petitioner has approached W.P.(C) No.27658 of 2017 -: 3 :- this Court. In the writ petition, apart from his claim for the pay revision of 2003, he has raised challenge against Ext.P9 order treating the period of suspension as suspension itself. 6. I have heard learned counsel on either side. 7. It is the contention of the petitioner that, on receipt of Ext.P6 requiring him to opt how the period of suspension is to be treated, he had given Ext.P7 reply dated 23.12.2007 stating that the period of suspension may be regularised by treating it as eligible leave. In spite of the same Ext.P9 proceedings were issued by the Board treating the said period as period of suspension itself. The said period is to be treated as eligible leave and the petitioner is to be granted the benefit of the 2003 pay revision, it is argued. 8. The learned Standing Counsel for the Board would on the other hand contend that, it is the definite case of the Board that the petitioner did not reply to Ext.P6 W.P.(C) No.27658 of 2017 -: 4 :- which resulted in Ext.P9. Ext.P9 order was passed on 18.01.2008. The challenge against the same in the writ petition filed on 21.08.2017 is not liable to be entertained. 9. To prove that in reply to Ext.P6, the petitioner had given Ext.P7 reply, there is absolutely no evidence. Though in Ext.P8 representation given by him on 11.07.2014 he makes a reference to his letter dated 23.12.2007, it is to be noticed that, even in Ext.P9 order it was stated that the petitioner did not submit any reply to Ext.P6. The petitioner never raised any challenge against the same. Ext.P15 is the letter dated 09.05.2014 sent by the petitioner to the Board with regard to non-receipt of balance DCRG and commuted value of pension. To the said letter the Board issued Ext.P16 reply pointing out that he was under suspension from 19.10.2001 till his retirement on 31.03.2005, and that he was not eligible for the pay revision of the year W.P.(C) No.27658 of 2017 -: 5 :- 2003 since he was not in the regular services of the Board. Ext.P17 is the reply sent by the petitioner to Ext.P16. Even in the said communication, the petitioner did not have a case that he had made a request to the Board as per Ext.P7 to have the period of suspension treated as eligible leave. In the circumstances, in the absence of any evidence to prove the submission of Ext.P7, it can only be held that Ext.P7 was not submitted by the petitioner. 10. As noticed above, Ext.P9 order treating the period of suspension as suspension itself was passed on 18.01.2008 and the writ petition was filed only on 21.08.2017 i.e. after a period of nine and a half years. The contents of Ext.P9 admitted of no doubt that the order is one treating the period as suspension itself. The relevant portion of Ext.P9 reads thus:- _“It is ordered to acquit Sri.T.K.Sugunan from the charges leveled against him and to treat the period of suspension (19.10.2001 to 31.03.2005) as suspension itself.”_ W.P.(C) No.27658 of 2017 -: 6 :- If aggrieved, the petitioner ought to have challenged the same within a reasonable period. Thus, the challenge against Ext.P9 is liable to be rejected for the reason of non-submission of reply to Ext.P6 and also on the ground of laches. 11. The learned counsel for the petitioner would contend that treating the period of suspension as suspension itself would affect the quantum of pension payable to the petitioner. Payment of pension is a recurring liability and cause of action. Hence the challenge against Ext.P9 is to be entertained, it is argued. I am unable to agree with the contention of the petitioner. The non-entitlement of the petitioner to the benefit of the pay revision order, 2003 and the consequential reduction in the quantum of pension is the necessary off-shoot of the petitioner's conduct in nonsubmission of reply to Exts.P6, and of P9 order that followed. If the petitioner was aggrieved by Ext.P9, he W.P.(C) No.27658 of 2017 -: 7 :- ought to have challenged the same during the relevant time. 12. The Board rightly held that the petitioner is not entitled for the 2003 pay revision since he was not in the regular services of the Board during that period. Ext.P22 order reveals that the petitioner was given the benefit of the pension revision of the year 2008. 13. Though the petitioner was not entitled for the pay revision of the year 2003, payments were being made to him by granting the benefits thereunder, till it was noticed and communicated under Ext.P16. It cannot be said that the petitioner has in any manner contributed to such erroneous/mistaken payment made by the Board. In the light of the judgment of the Apex Court in _**State of Punjab v. Rafiq Masih (white washer) 2015 (1) KLT 429 (SC),**_ the payment mistakenly made to the petitioner, who is a Grade-III Mechanic, and has retired from the service, is not liable to be recovered. The amounts recovered from W.P.(C) No.27658 of 2017 -: 8 :- him as mentioned in Ext.P16 is liable to be returned to him. 14. Resultantly, the writ petition is ordered as under: (i) The challenge against Ext.P9 is declined. (ii) It is held that the petitioner is not entitled for the benefit of the Pay Revision of 2003. (iii) No further recovery of the amounts already paid to the petitioner reckoning the pay revision of the year 2003, shall be effected. (iv) The amounts recovered from the petitioner as indicated in Ext.P16, shall be refunded to the petitioner within a period of one month from today. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **APPENDIX OF WP(C) 27658/2017** ## **PETITIONER EXHIBITS** |**EXHIBIT P1 :**|**TRUE** **COPY** **OF** **THE** **ORDER** **NO.GBI-**| |---|---| ||**DISCIPLINARY/2001--2/1455/5.11.01** **DATED**| ||**5.11.2001 BY THE DEPUTY CHIEF ENGINEER,**| ||**ELECTRICAL CIRCLE, THODUPUZHA.**| |**EXHIBIT P2 :**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**12-6-2003 SUBMITTED BY THE PETITIONER TO THE**| ||**DEPUTY CHIEF ENGINEER.**| |**EXHIBIT P3 :**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**12-5-2004 SUBMITTED BY THE PETITIONER TO THE**| ||**DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE.**| |**EXHIBIT P4 :**|**TRUE COPY OF THE MEMO NO.EB 4/PENION/2004-**| ||**05/2543 DATED 31.3.2005 BY THE EXECUTIVE**| ||**ENGINEER.**| |**EXHIBIT P5 :**|**TRUE COPY OF THE JUDGMENT DATED 2-6-2007 IN**| ||**SC NO.303/2004.**| |**EXHIBIT P6 :**|**TRUE COPY OF THE SHOW CAUSE NOTICE NO.GB**| ||**1/DISCIPLINARY/2001-** **2002/238** **DATED**| ||**14-11-2007 BY THE DEPUTY CHIEF ENGINEER,**| ||**THODUPUZHA.**| |**EXHIBIT P7 :**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**23-12-2007 BY THE PETITIONER TO THE DEPUTY**| ||**CHIEF** **ENGINEER,** **ELECTRICAL** **CIRCLE,**| ||**THODUPUZHA.**| |**EXHIBIT P8 :**|**TRUE COPY OF THE LETTER NO.PA/II/PPO 37393**| ||**DATED** **23-10-2008** **BY** **THE** **ACCOUNTS**| ||**OFFICER(PENSION AUTHORISATION) FOR THE CHIEF**| ||**ENGINEER (HRM).**| |**EXHIBIT P9 :**|**TRUE** **COPY** **OF** **THE** **ORDER** **NO.GB**| ||**1/DISCPLINARY/2001-2002/275 DATED 18-1-2008**| ||**BY THE DEPUTY CHIEF ENGINEER, THODUPUZHA.**| |**EXHIBIT P10 :**|**TRUE COPY OF THE NON LIABILITY CERTIFICATE**| ||**NO.EB2/24/08-09 DATED 21-8-2008 BY THE**| ||**EXECUTIVE ENGINEER.**| APPENDIX- **WP(C) 27658/2017** -2- |**EXHIBIT P11**|**:**|**TRUE COPY OF THE LETTER NO.EB2/PENSION/08-**| |---|---|---| |||**09/834/22/8/08 DATED 21-8-2008 BY THE**| |||**EXECUTIVE ENGINEER.**| |**EXHIBIT P12**|**:**|**TRUE COPY OF THE LETTER NO.PA/II/PPO 37393**| |||**DATED 17-10-2008 BY THE ACCOUNTS OFFICER**| |||**PENSION AUTHORISATION IN THE OFFICE OF THE**| |||**CHIEF ENGINEER (HRM)**| |**EXHIBIT P13**|**:**|**TRUE COPY OF THE LETTER NO.PA II/PPO 37393**| |||**DATED 16/9/2009 BY THE ACCOUNTS OFFICER,**| |||**PENSION AUTHORISATION.**| |**EXHIBIT P14**|**:**|**TRUE COPY OF THE LETTER NO.PA II/PPO 37393**| |||**DATED 9/1/2013 BY ACCOUNTS OFFICER, PENSION**| |||**AUTHORISATION.**| |**EXHIBIT P15**|**:**|**TRUE COPY OF THE LETTER DATED 9-5-2014**| |||**SUBMITTED BY THE PETITIONER TO THE EXECUTIVE**| |||**ENGINEER WITH A COPY TO THE CHIEF ENGINEER**| |||**(HRM)**| |**EXHIBIT P16**|**:**|**TRUE COPY OF THE LETTER NO.GB2/PENSION/2014-**| |||**15/107 DATED 19/5/2014 THE EXECUTIVE**| |||**ENGINEER.**| |**EXHIBIT P17**|**:**|**TRUE COPY OF THE REPRESENTATION DATED**| |||**7-6-2014 SUBMITTED BY THE PETITIONER TO THE**| |||**CHIEF ENGINEER (HRM)**| |**EXHIBIT P18**|**:**|**TRUE COPY OF THE REPRESENTATION DATED**| |||**11-7-2014 SUBMITTED BY THE PETITIONER TO THE**| |||**CHIEF ENGINEER (HRM)**| |**EXHIBIT P19**|**:**|**TRUE COPY OF THE MESSAGE ID NO.23173-1433025-**| |||**143 DATED 16-9-2015.**| |**EXHIBIT P20**|**:**|**TRUE COPY OF THE LETTER NO.6865/A2/**| |||**2015/OO.VA. DATED 1-10-2015 ITS WAS INTIMATED**| |||**BY THE SECRETARY, POWER DEPARTMENT.**| |**EXHIBIT P21**|**:**|**TRUE COPY OF THE LETTER NO.EBPS/12/1804/2008**| |||**DATED 13-11-2015 OF THE ACCOUNTS OFFICER, AND**| |||**PENSION SANCTION.**| APPENDIX- **WP(C) 27658/2017** -3- ## **EXHIBIT P22 :** **TRUE COPY OF THE LETTER NO.CE(DC)/GB1-PENSION 2015-16/3712 DATED 19-2-2016 BY THE CHIEF ENGINEER.** -----