IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26589 of 2007(M)
1. K.G.GOPALAKRISHNAN NAIR,RETD. OPERATOR,
... Petitioner
Vs
1. KERALA WATER AUTHORITY REPRESENTED BY
... Respondent
2. EXECUTIVE ENGINEER, PH DIVISION,
3. ASSISTANT EXECUTIVE ENGINEER,
For Petitioner :SMT.P.V.ASHA
For Respondent :SRI.J.KRISHNA KUMAR, SC, KWA
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :03/06/2009
O R D E R
S. SIRI JAGAN, J.
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W.P.(C)No. 26589 OF 2007
and
W.P.(C)No. 25639 OF 2008
-------------------------------------------------
Dated this the 3rd day of June, 2009
JUDGMENT
These writ petitions are filed by a low level employee of the
Kerala Water Authority aggrieved by denial of pension and medical
reimbursement benefits as also challenging the revision of time
bound higher grade benefits granted to the petitioner earlier, after
filing the first writ petition. As far as the medical reimbursement
benefits are concerned, pursuant to interim orders of this court, as
per the directions of the Government in the matter, the amounts have
subsequently been disbursed to the petitioner. Counsel for the
petitioner submits that, that too was only after filing of a contempt
petition.
2. According to the petitioner, petitioner commenced the
service of the Kerala Water Authority on 30.03.73 as a CLR worker.
By Government Order dated 23.02.79, the Government decided to
absorb CLR workers, who have completed 240 days of service as
NMR workers. That was with effect from 01.04.79. Subsequently by
WPC : 26589/07 & 25639/08
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Ext.P12 Government Order dated 25.7.81, the Government directed
grant of benefits of regularisation as NMR worker with effect from
04.08.77. (Ext.P12 in WP(C) No.65289/09). Petitioner was also
given regularisation in service in accordance with those Government
Orders. As is clear from the copy of the service book of the
petitioner produced as Ext.P1, the pay of the petitioner was fixed
reckoning his service from 04.08.77. Thereafter he was given 10
years higher grade with effect from 04.08.87. By Ext.P2 the 3rd
respondent fixed the pay of the petitioner granting 10 years’ higher
grade with effect from 04.08.87 on 10.12.89. By Ext.P3 order dated
07.12.95 the petitioner was granted higher grade benefits after 18
years with effect from 04.08.95. Subsequently by Ext.P4 dated
22.12.00 petitioner was given 23 years higher grade from 04.08.00.
On 01.06.05 audit objection was raised on the ground that the grant
of higher grades given to the petitioner was not correct, since the
petitioner was not qualified. Petitioner filed WP(C) No.28014/05 and
by judgment dated 12.06.06 that writ petition was allowed and the
impugned orders were quashed. By Ext.P9 dated 17.04.06 sanction
was accorded for reckoning the pre-regularised CLR/SLR service of
the petitioner also for time bound higher grades. Petitioner
WPC : 26589/07 & 25639/08
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requested for forwarding his pension papers to the Accountant
General by request dated 12.02.07. Petitioner retired from service
on 31.05.07. Thereafter petitioner filed WP(C) No.26589/07
complaining that pension and medical reimbursement were not given
to the petitioner. In that writ petition by an interim order dated
20.09.07 this Court directed the 1st respondent to take a decision on
the question of grant of provisional pension to the petitioner. By
Ext.P7 provisional pension was sanctioned. Petitioner would contend
that Ext.P7 order itself was issued, after a notice for initiating
contempt proceedings was issued to the 2nd respondent.
Subsequently the Government issued order dated 16.02.08 which is
Ext.P17 in WP(C) No.25639/08, according sanction for
reimbursement of medical benefit to the tune of Rs.1,16,168/-. By
order dated 24.03.08 this Court directed the Water Authority to take
consequential action on the basis of Ext.P17. Petitioner again
complained before this court that no action was taken. This court
again passed order dated 13.06.08 directing the 1st respondent to
disburse to the petitioner the amounts sanctioned as per Ext.P17,
without further delay, at any rate, within two weeks from the date of
receipt of a copy of this order. Even thereafter that amount was not
WPC : 26589/07 & 25639/08
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paid. Petitioner thereafter filed CCC No.742/08, after which only that
amount was paid. Subsequently, by Ext.P8 order dated 07.08.08 the
2nd respondent revised the higher grade benefits granted to the
petitioner on the ground that the petitioner is entitled to service
benefits counting his service with effect from 01.04.79 only. It is
under the above circumstances the petitioner has filed these two writ
petitions seeking the following reliefs:
WP(C) : 26589/07
“i. declare that petitioner is entitled to get his pension and
pensionary benefits settled, sanctioned and disbursed reckoning
his CLR service for the period from 30.3.1973 onwards and NMR
service from 4.8.1977 onwards;
ii. issue a writ of mandamus or other appropriate writ, order or
direction commanding the respondents to revise the time bound
higher grades granted to petitioner reckoning his continuous CLR
service for the period from 1973 to 1977 also, to re-fix the pay of
petitioner accordingly and to settle his pensionary benefits based
on the pay thus arrived at, reckoning his CLR service from 1973
onwards and NMR service from 4.8.1977, to sanction and disburse
all pensionary benefits due to him accordingly;
iii. issue a writ of mandamus or other appropriate writ, order or
direction commanding the 1st respondent to sanction and disburse
the amount claimed by the petitioner in Ext.P11 towards due to
petitioner towards Medical Reimbursement forthwith;”
WPC : 26589/07 & 25639/08
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WP(C) : 25639/08
“i. call for the records leading to Ext.P7 and P8 and quash Ext.P7
to the extent it directs revision of higher grades granted to petitioner
and quash Ext.P8 by issue a writ of certiorari or other appropriate
writ, order or direction;
ii. issue a writ of mandamus or other appropriate writ, order or
direction commanding the respondents to restore the higher grades
granted to petitioner in Ext.P2 to P4 and to grant him the benefits of
2007 pay revision, to fix his pension reckoning his service as
recorded in Ext.P10 also and to settle and disburse all the terminal
benefits due to the petitioner;”
3. A counter affidavit has been filed in WPC 26589/07 and a
statement in the other writ petition. The tenor of the counter affidavit
and statement appears to be that the entries in the service book have
been unauthenticated and doubtful and therefore the petitioner is not
entitled to benefits on the basis of service as entered in the service
book.
4. I have considered the rival contentions in detail. Ext.P1 and
P10 are the entries relating to the petitioner’s service in his service
book. The existence of those entries is not disputed by the
respondents. The 2nd respondent’s contention is that the entries are
unauthenticated and doubtful. As far as Ext.P10 is concerned, the
averment that it is unauthenticated itself is false. That entry has
WPC : 26589/07 & 25639/08
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been authenticated by the Assistant Engineer, PH Section, Vaikom
on 01.06.79. It categorically states that the petitioner worked as CLR
pump operator for the period from 30.03.73 to 30.3.79. I specifically
asked the counsel for the Water Authority as to how the 2nd
respondent came to the conclusion that Ext.P10 has not been
authenticated and the entry is doubtful. I specifically asked the
counsel as to whether the 2nd respondent had enquired with the
Assistant Engineer, who was in service on 11.06.79 and who
attested the entry, as to whether he had made such an entry and
attested it. The counsel had no answer. It is also not disputed
before me that the responsibility of maintaining the service book of
the employees is that of the 2nd respondent. If the entries in the
service book are not correct or unauthenticated, then the
responsibility lies with the 2nd respondent himself. If entries are
wrong, it was the responsibility of the 2nd respondent to see that the
entries are properly corrected to show the correct entries. The 2nd
respondent has no case that he had taken any steps in that regard.
The entries in the service book specifically show that the petitioner
entered service as a CLR worker on 30.03.73. It is also specifically
stated that his service was regularized originally with effect from
WPC : 26589/07 & 25639/08
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01.04.97 as NMR worker. It is also specifically stated therein that the
service benefits were re-fixed with effect from 04.08.77 as an NMR
worker. The 2nd respondent has no case that the entries in the
service book has later been changed. Ext.P1(a) is the service book
of another person by name, K.Ravindran. The service book of that
person is identical to that of the petitioner. It is strange that the 2nd
respondent does not have any doubts regarding the entries in the
service book of Sri.K.Ravindran and at the same time he entertains a
doubt as to the entries therein, that too after the filing of WP(C)
26589/07 and he finds it necessary to pass Ext.P8 order revising the
higher grade benefits given to the petitioner contrary to the entries in
the service book, without correcting the entries therein. Ext.P8 order
also does not state as to from where the 2nd respondent obtained the
information that re-fixation of the time bound higher grade benefits
given to the petitioner has become necessary. The petitioner points
out that Ext.P8 order was passed by the person holding the post of
the 2nd respondent the day prior to his transfer from that station. As
such, the entire action of the 2nd respondent in regard to the benefits
due to the petitioner is dubious to say the least. In Ext.P7 which is
the letter from the 4th respondent to the 2nd respondent sanctioning
WPC : 26589/07 & 25639/08
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provisional pension there are some reservations on the reckoning of
the service for the purpose of higher grade, the basis for which also
is not clear.
5. By Ext.P9 order dated 17.04.06 the Managing Director of
the Water Authority himself had, apparently based on judgments of
this Court, accorded sanction for counting pre-regularised CLR
service of certain employees of the Kerala Water Authority for the
purpose of higher grade subject to certain conditions. By Ext.P13
Circular the Managing Director again held that even in the case of
CLR/SLR workers whose service has been subsequently regularized,
in respect of whom no records of their earlier service are available,
minimum one year CLR service should be counted for service
benefits in so far as regularization can only be after putting in 240
days of service.
6. From the orders of the Government and the Kerala Water
Authority it is abundantly clear that the service as CLR worker is also
eligible to be counted for calculating higher grades and consequently
pension. The service book of the petitioner shows that the petitioner
entered service as a CLR worker on 30.03.73. The service book also
shows that the petitioner’s service was regularized as an NMR
WPC : 26589/07 & 25639/08
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worker with effect from 04.08.77. Petitioner has categorically stated
in the writ petition that these details are available from other records
of the Water Authority themselves. He has in Ext.P11 statement
specifically quoted some of the pages of ‘M Books’ relating to the
petitioner’s work, which according to the petitioner would go to prove
the period of work of the petitioner. The petitioner would allege that
the petitioner was prepared to verify the same in the presence of the
respondents. An opportunity for the same was also requested by the
petitioner, but was declined. In fact the petitioner had sought an
interim relief in WP(C) 26589/07, to direct the respondents 2 and 3
to produce the M Book and cash book relating to engagement of
CLR workers for the period from 01.03.73 to 01.04.77. The
respondents have not cared to produce the same or even refer to the
same, which would have been the best evidence either way.
7. In view of the above findings, I am completely satisfied that,
petitioner has proved beyond any reasonable doubt that petitioner’s
service as CLR worker started on 13.03.73 and the petitioner was
regularized as an NMR worker with effect from 04.08.77. In view of
the orders on the subject of grant of higher grades counting CLR
service also, the petitioner is entitled to all his service benefits
WPC : 26589/07 & 25639/08
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calculated accordingly. Consequently, I find that the orders revising
the petitioner’s higher grade benefits are clearly illegal and
unsustainable.
8. In the result, the writ petitions are allowed. Exts.P7 and P8
in WP(C):25639/08 are quashed. It is declared that the petitioner’s
service as CLR worker commences from 13.03.73 and that he has
been absorbed in service as NMR worker with effect from 04.08.77.
Petitioner is entitled to pensionary benefits calculating the entire
service from 13.03.73 onwards. Petitioner is also entitled to the
calculation of higher grades taking into account the CLR service from
13.03.73 also. The higher grade benefits and the pensionary
benefits due to the petitioner shall be re-calculated accordingly.
Orders in this regard shall be passed by the 2nd respondent as
expeditiously as possible, at any rate, within two months from the
date of receipt of a copy of this judgment. The arrears due to the
petitioner on account of such re-calculation shall also be disbursed to
the petitioner within the said time.
9. In view of the unreasonable attitude taken by the 2nd
respondent in the matter I am inclined to direct the 2nd respondent to
pay cost to the petitioner. Cost is fixed at Rs.10,000/-. The same
WPC : 26589/07 & 25639/08
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shall be paid to the petitioner by the respondents. The first
respondent shall take steps to recover from the respective Executive
Engineers who are responsible for the delay in disbursal of the
amounts due to the petitioner, particularly, the person who has
passed Ext.P8 order revising the petitioner’s higher grade benefits.
The writ petitions are allowed as above.
S. SIRI JAGAN, JUDGE
ttb