WP(C) Nos. 34602 of 2011 and 1596 of 2012 – Yousuff P.A. and Sheik Ahmed S. v. Kerala State Electricity Board and Others; M. Ramachandran and C. P. Jayanarayanan v. Kerala State Electricity Board and Others

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE AMIT RAWAL` ``` THURSDAY, THE 25[TH] DAY OF MAY 2023 / 4TH JYAISHTA, 1945 ``` ``` WP(C) NO. 34602 OF 2011 ``` ## `- PETITIONER :` ``` 1YOUSUFF P.A. SUB ENGINEER (ELECTRICAL),KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION,CHERUTHURUTHY, WADAKKANCHERRY DIVISION, THRISSURDISTRICT. 2SHEIK AHMED.S. SUB ENGINEER (ELECTRICAL),KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION,WADAKKANCHERRY DIVISIOIN, (THRISSUR CIRCLE),THRISSUR DISTRICT. BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH SRI.T.G.SUNIL PRANAVAM ``` ## `RESPONDENT/S:` ``` 1THE KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY,VAIDYUTHI BHAVANAM, PATTOM,THIRUVANANTHAPURAM – 695 001. 2THE CHIEF ENGINEER H.R.M KERALA STATE ELECTRICITY BOARD,VAIDYUTHI BHAVANAM, PATTOM,THIRUVANANTHAPURAM – 695 001. 3THE EXECUTIVE ENGINEER ELECTRICAL DIVISION, KERALA STATE ELECTRICITY BOARD, WADAKKANCHERRY – 680 301. 4THE CHIEF INTERNAL AUDITOR KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVANAM, PATTOM,THIRUVANANTHAPURAM – 695 001. ``` ``` BY ADVS. SRI.K.S.ANIL, SC, KSEB SRI.M.K.THANKAPPAN, SC, KERALA STATE ELECTRICITY BOARD LIMIT ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.05.2023, ALONG WITH WP(C).1596/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NOs. 34602 OF 2011 & 1596 OF 2012 ``` ``` 2 ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL ``` ``` THURSDAY, THE 25[TH] DAY OF MAY 2023 / 4TH JYAISHTA, 1945 ``` ## `WP(C) NO. 1596 OF 2012` ## `- PETITIONERS :` ``` 1M.RAMACHANDRAN AGED 60 YEARS S/O. GOVINDAN NAIR, SUB ENGINEER (RETIRED) FROM ELECTRICAL CIRCLE SHORANUR, PALAKKAD DISTRICT. 2C.P. JAYANARAYAN S/O. C. PORAYAL, SUB ENGINEER (RETIRED FROM ELECTRICAL SECTION CHARPULASSERY (PO) PALAKKAD DISTRICT. BY ADVS.SRI.M.V.THAMBAN SRI.B.BIPIN SRI.R.REJI SMT.THARA THAMBAN ``` ## `- RESPONDENTS :` ``` 1THE KERALA STATE ELECTRICITY BOARD REPRESENTED BY THE SECRETARY, VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695004. 2CHIEF ENGINEERHRM THE KERALA STATE ELECTRICITY BOARD,VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695004. 3EXECUTIVE ENGINEER ELECTRICAL DIVISION, KERALA STATE ELECTRICITY BAORD, SHORNUR, PALAKKAD DISTRICT-679121. 4CHIEF INTERNAL AUDITOR KERALA STATE ELECTRICITY BOARD,VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695004. 5STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. BY ADVS. SRI.K.S.ANIL, SC, KSEB SRI.M.K.THANKAPPAN, SC, KSE BOARD LIMIT ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.05.2023, ALONG WITH WP(C).34602/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## `WP(C) NOs. 34602 OF 2011 & 1596 OF 2012` ``` 3 ``` ## `JUDGMENT` ``` Dated this the 25[th] day of May, 2023 ``` ``` This order of mine shalldispose of two writ petitions, W.P(C) No.34602 of 2011 (first writ petition) and W.P(C) No.1596 of 2012 (second writ ``` ``` petition). Ext.P9 order dated 02.11.2011 in the first writ petition and Ext.P19 order dated 02.12.2012 in ``` ``` the second writ petition ordering recovery of the ``` ``` excess amounts paid to the petitioners have been challenged. ``` ``` 2.The basis of challenge of the aforementioned ``` ``` orders will be taken from the facts of the first writ petition. ``` ``` 3.All the petitioners in the year 1981 were ``` ``` provisionally employed as Lineman, Kerala State ``` ``` Electricity Board (hereinafter called ‘Board’). In ``` ``` the year 1986 i.e. on 16.08.1986 vide Ext.P1, Board ``` ``` entered into a long term settlement with the Trade ``` ``` Unions of its Employees and after its approval, was ``` ``` published. As per the relevant Clause of the ``` ``` WP(C) NOs. 34602 OF 2011 & 1596 OF 2012 ``` ``` 4 ``` ``` settlement, the workmen in the category of Lineman and the Second Grade Overseer were integrated with effect from 01.08.1986 which was re-designated as Overseer (Electrical). While the petitioners were continuing in-service as Lineman re-designated as Overseer (Electrical), on the basis of the directions issued in Cont.Case (C) No.346/97, were regularised as Lineman/Meter Readers with effect from 17.10.1998. However, despite both the posts of Lineman and Second ``` ``` Grade Overseer got re-designated as Overseer (Electrical), were described as Meter Readers. Thereafter, another settlement dated 29.08.2000, ``` ``` Ext.P5 was entered into between the Board and the Trade Unions pertaining to the rights and prerogatives of the Management and the Workmen like wages and salaries, Allowances - Dearness Allowance, City Compensatory Allowance, House Rent Allowance, Hill Track Allowance, Investigation Allowance, Local ``` ``` Delivery Allowance and Staff pattern – ministerial executive, drivers and electricity workers. Serial ``` ``` WP(C) NOs. 34602 OF 2011 & 1596 OF 2012 ``` ``` 5 ``` ``` number 8 of the Executive Staff in the Staff Pattern ``` ``` of Settlement, 2000 envisaged that the post of Meter ``` ``` Reader shall be treated as a feeder category for ``` ``` promotion to the post of Sub Engineer (Electrical) against 60% quota and post of Overseer (Electrical) shall cease to be the feeder category to the post of Sub Engineer (Electrical) from the date of the settlement. It was further made clear that all the existing qualified Overseers as on the date of the settlement i.e.29.08.2000, would be promoted to the ``` ``` post of Sub Engineer (Electrical) and thereafter, the ``` ``` qualified Meter Readers will be considered for promotion to the post of Sub Engineer (Electrical). 40% of the existing places of the Overseer ``` ``` (Electrical) would be shifted to Meter Reader and 40% ``` ``` of the vacancies in the category of Meter Reader were to be reserved for qualified in-service candidates and so and so forth. Thus, for all intends and ``` ``` purposes, the post of Overseer no longer existed to be a feeder category for promotion to the post of Sub ``` ## `WP(C) NOs. 34602 OF 2011 & 1596 OF 2012` ``` 6 ``` ``` Engineer (Electrical). All the petitioners were promoted in the year 2007 as Sub Engineer ``` ``` (Electrical) and continued to discharge their duty without any demur. ``` ``` 5.Since certain issues were required to be re- addressed with regard to the increment etc., another memorandum of settlement dated 28.02.2007 Ext.P6 was entered into between the representatives of the Board ``` ``` and workmen and against serial No.15, it was ``` ``` mentioned that the provisional service rendered by ``` ``` the provisional Lineman/Meter Readers from 1981 ``` ``` onwards would be reckoned as qualifying service for pension. It was further made clear that the ``` ``` continuous provisional service from February 1989 would be reckoned for weightage, increment, higher grade and leave benefits with effect from 31.07.2003, i.e., all the similarly situated persons like the ``` ``` petitioners would have a notional benefit from 1989 ``` ``` and actual benefit with effect from 31.7.2003. ``` ``` 6.Learned counsel appearing on behalf of the ``` ## `WP(C) NOs. 34602 OF 2011 & 1596 OF 2012` ``` 7 ``` ``` petitioners argued that the petitioners were ``` ``` flabbergasted to receive the impugned communication dated 2.11.2011 whereby on the basis of an audit objection, the Executive Engineer, Electrical Division, Wadakkancherry was directed to re-fix the scale of Overseer instead of Sub Engineer and re- submit on the premise that as per Clause 8 of Article VII of the Settlement dated 29.08.2000 (Ext.P5), the post of Meter Reader was treated as a Feeder category for promotion to the post of Sub Engineer from the date of the settlement and as per the said Clause, the provisional Meter Readers were eligible for Higher Grades in the scale applicable to the post of Overseer, since the date of Higher Grade promotion was prior to 29.08.2000 i.e., February 1999, meaning thereby that all notional benefits were required to be granted to the petitioners after ten years of the settlement Ext.P6. ``` ``` 7.Thepetitionersnevermisrepresented respondents as they were entitled to get the benefits ``` ## `WP(C) NOs. 34602 OF 2011 & 1596 OF 2012` ``` 8 ``` ``` strictly as per the settlement Ext.P6.In other words, there was no mens rea or fraud at the behest of the petitioners in taking the undue advantage of the benefits. In support of the aforementioned contentions, judgment of the Supreme Court in Thomas Daniel v. State of Kerala[2022(3)KLT307(SC)] was relied on. ``` ``` 8. On the other hand, learned counsel appearing ``` ``` on behalf of the respondents countered the arguments of the petitioners on the ground that the services of the petitioners were regularised in the post of Meter Readers vide order dated 17.10.1998 and not as Lineman. Regularization was revised with effect from 22.12.1993 as per the Board order dated 22.10.2007, thus for all intends and purposes, the petitioners could not have been included in the list of regular employees of KSEB in 1986 when the first settlement dated 16.08.1986 was entered into. ``` ``` 9.It was further argued that at the stage of re-designation of “Lineman to Overseer”, they were ``` ``` WP(C) NOs. 34602 OF 2011 & 1596 OF 2012 ``` ``` 9 ``` ``` only provisionalemployees. Memorandum of settlement ``` ``` Ext.P6 dated 28.02.2007 specified that the service rendered by the petitioners from 1981 onwards would be reckoned as qualified service for pension and their continuous provisional service from February ``` ``` 1989 would be reckoned for weightage, increment, higher grade and leave benefits with effect from ``` ``` 31.07.2003. Impugned order was justified and the ``` ``` petitioners had drawn undue benefits, for, they were not there in the rolls as regular employees on the date when the settlement 1986 was issued. ``` ``` 10.I have heard the learned counsel for the ``` ``` parties and appraised the paper books. ``` ``` 11.The facts pertaining to the appointment of ``` ``` the petitioners as “Lineman” on provisional basis in ``` ``` 1989 and settlement dated 16.08.1986 are not in ``` ``` dispute. For the sake of brevity, Clause 3 of the ``` ``` Staff Pattern of the Settlement regarding the re- ``` ``` designation of the post of “Lineman” and “Overseer (Electrical)” reads as follows :- ``` ``` WP(C) NOs. 34602 OF 2011 & 1596 OF 2012 ``` ``` 10 ``` ``` “3.The workmen in the category of Lineman in the scale of pay of Rs.675-1240 (revised) and the Second Grade Overseer in the scale of pay of pay of Rs.765-1330 (revised) will be integrated with effect from 1-8-1986. The integrated category will be redesignated as Overseer (Electrical). For this purpose, the Lineman in the scale of pay of Rs.675- 1240(revised) will be taken together as a block without disturbing their interse seniority and placed below the Junior-most Second Grade Overseer (Electrical) in the service of the Board. Overseer (Electrical) will carry out the duties, functions and responsibilities now being carried out by the Second Grade Overseers and Lineman. Promotion to the category of Overseer (Electrical) will be from the category of Line Assistant in the ratio of 60:40 between qualified and unqualified hands.” ``` ## `12. Since the petitioners continued to be` ``` provisional along with others, the matter reached the ``` ``` court and on the basis of the directions, Board vide ordered dated 17.10.1998, Ext.P3 in the first writ petition, regularized the services of all the petitioners but treated them as Meter Readers despite the fact that the post of Lineman and Second Grade ``` ``` 11 ``` ## `WP(C) NOs. 34602 OF 2011 & 1596 OF 2012` ``` Overseer integrated as Overseer (Electrical). This fact was clarified in Clause No.8 Staff Pattern of the settlement dated 11.08.2000 Ext.P5, which reads as follows :- ``` ``` “8. The post of Meter Reader shall be treated as the feeder category for promotion to the post of Sub Engineer (Ele.) against the 60% quota and the post of Overseer (Ele.) shall cease to be the feeder category to the post of Sub Engineer (Ele.) from the date of this Settlement. All the existing qualified Overseers as on the date of the Settlement will be promoted to the post of Sub Engineer (Ele) and thereafter the qualified Meter Readers will be considered for promotion to the post of Sub Engineer (Ele.). 40% of the existing places of the Overseer(Ele.) will be shifted to Meter Reader and 40% of the vacancies in the category of Meter Reader will be reserved for qualified in-service candidates.25% of the Meter Reader post will be filled up by promoting qualified inservice candidates of and below the pay scale of Meter Reader. The method of appointment of Meter Reader will be modified as 60:40 between direct recruitment and promotion form qualified in-service candidates, with the concurrence of the Kerala Public Service Commission. Vacancies arising hereafter in ``` ## `WP(C) NOs. 34602 OF 2011 & 1596 OF 2012` ## `12` ``` the post of Overseer(Ele) will be filled up in the following manner: ``` ``` (i)90% by promotion from the post of Lineman Gr.I based on seniority. ``` ``` (ii) 7% by promotion from persons with ITI ``` ``` (non-electrical) and Meter Readers who are not eligible for promotion for the post of Sub Engineer (Ele) according to seniority. ``` ``` (iii) 3% by promotion from persons with a pass in 8th standard and 5 years field experience according to seniority.” ``` ``` 13.On perusal of the aforementioned clause, ``` ``` “Meter Readers” were also to be treated at par with ``` ``` the “Overseer (Electrical)”, but it no longer ``` ``` remained to be a Feeder category for the post of Sub Engineer (Electrical). The clause also specified the ``` ``` filling of the vacancies in the post of Overseer in a ``` ``` particular manner. Since there was a dispute with regard to the increment, weightage, etc., another ``` ``` Settlement was executed on 28.02.2007, Ext.P6 in the ``` ``` first writ petition, relevant portion of the same ``` ``` reads as follows: ``` ``` “15.The provisional service rendered by the provisional Lineman/Meter Reader from 1981 onwards ``` ``` 13 ``` ## `WP(C) NOs. 34602 OF 2011 & 1596 OF 2012` ``` will be reckoned as qualifying service for pension. Their continuous provisional service from February 1989 will be reckoned for weightage, increment, higher grade and leave benefits with effect from 31.07.2003.” ``` ``` 14.It was made clear that the benefits would be granted with effect from 31.07.2003 to the ``` ``` “Lineman/Meter Readers”. From the perusal of the ``` ``` aforementioned clause, there is no doubt that the respondents treated the Lineman/Meter Readers and Overseer (Electrical) as an integrated post. ``` ``` 15.It is a matter of record that the benefit of ``` ``` increment was granted to the petitioners only after ``` ``` ten years of the date of the regularization, though the settlement was arrived at as on 29.08.2000 ``` ``` (Ext.P5). The audit department raised the objection ``` ``` of excess drawal of the benefits including the element of increment etc, resulted into the revision of the pay scale and order for recovery. The law with regard to the recovery of the amount in the absence of any misrepresentation, fraud or mala fide is no ``` ``` WP(C) NOs. 34602 OF 2011 & 1596 OF 2012 ``` ``` 14 ``` ``` longer in dispute, in view of the finding rendered in paragraph 9 of the judgment in Thomas Daniel (Supra), which reads as follows :- ``` ``` “(9) This Court in a catena of decisions has consistently held that if the excess amount wasnotpaidonaccountofany misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. This Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess.” ``` ``` 15 ``` ## `WP(C) NOs. 34602 OF 2011 & 1596 OF 2012` ``` 16.There is no whisper in the counter affidavit ``` ``` that the petitioners would fall in the said category, ``` ``` by drawing undue benefits. The stand of the ``` ``` respondents that the petitioners were not on the regular rolls since 1986 when the settlement was arrivedat,cannot be accepted for the reason that all the settlements have to be read cumulatively and not in isolation. ``` ``` For the reasons aforementioned, impugned orders Ext.P9inW.P(C).34602/11andExt.P19in W.P(C).1596/12 are quashed.Writ petitions stand allowed. ``` ``` Sd/- ``` ``` AMIT RAWAL ``` ``` JUDGE ``` ``` SMA ``` ``` WP(C) NOs. 34602 OF 2011 & 1596 OF 2012 ``` ``` 16 ``` ## `APPENDIX OF W.P.(C) NO.34602 OF 2011` ``` ’- PETITIONRS EXHIBITS : ``` ``` Ext.P1 - True copy of the Board Order dated 16.8.1986. Ext.P2 - True copy of the Board Order dated 16.11.1990. Ext.P3 - True copy of the Board Order dated Ext.P4 - True copy of the Board Order dated 27.4.2005. ``` ``` Ext.P5 - True copy of Article VII of the settlement entered into by the Board with the Trade Unions. in the year 2000. ``` ``` Ext.P6 - True copy of the Memorandum of settlement of he Board in the year 2007. Relevent Portion. ``` ``` Ext.P7 - True copy of the circular issued by the 1st respondent. dated 2.2.2011. ``` ``` Ext.P8 - True copy of the relevant extract of Article VIII of the 1990 settlement of the Board. ``` ``` Ext.P9 - True copy of the objections raised by the 4[th] respondent. ``` ``` WP(C) NOs. 34602 OF 2011 & 1596 OF 2012 ``` ``` 17 ``` ## `APPENDIX OF W.P.(C) NO.1596 OF 2012` ## `PETITIONER'S EXHIBITS :-` ``` Exhibit P1: True copy of the letter No. PSII/62/88 dated 11.7.1990 issued by the 1st respondent. ``` ``` Exhibit P2: True copy of the letter No. Pay Fix. 1/91/214 dt.20.5.1991 issued by the 1st respondent. ``` ``` Exhibit P3: True copy of the letter No. PSII/862/88 (Vol.II) 573 dt.23.8.1996 issued by the 1st respondent. Exhibit P4: True copy of the Board Order G.O.No.3215/98/P.SSII/862/88 dt. 17.10.1998 issued by the 1st respondent. ``` ``` Exhibit P5: True copy of the relevant pages of Circular No.1/LTS/1998 dt.6.10.2000 issued by the 1st respondent. ``` ``` Exhibit P6: True copy of the Board Order No.B.0.288/2000 PS.II/862/88 dt. 31.1.2000 issued by the 1st respondent. ``` ``` Exhibit P6 (a): True copy of the Form for pay Calculation. Exhibit P7: True copy of the pay fixation order No. EB3/Fixn/MGT/95-96/3153 dated 15.2.1996 of Sri.Gopinathan Achary. ``` ``` Exhibit P8: True copy of the Letter No. EB (3)/Pay Fixn/2003 dated 13.11.2003. ``` ``` Exhibit P9: True copy of the GO (Rt) No.249/05/PD dated 6.7.2005. ```