IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 WP(C).No. 26589 of 2007(M) -------------------------------------- PETITIONER: ------------------- K.G.GOPALAKRISHNAN NAIR, RETD. OPERATOR, (WSP SUB DIVISION,KERALA WATER AUTHORITY, VAIKOM) EZHUMAYIL HOUSE (TRIVENI)THEKKENADA P.O. VAIKOM. BY ADV. SMT.P.V.ASHA RESPONDENTS: ------------------------ 1. KERALA WATER AUTHORITY REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, THIRUVANANTHAPURAM. 2. EXECUTIVE ENGINEER, PH DIVISION, KERALA WATER AUTHORITY,PIRAVAM. 3. ASSISTANT EXECUTIVE ENGINEER, WSP SUB DIVISION, KERALA WATER AUTHORITY,VAIKOM. ADDL.4. THE FINANCE MANAGER & CHIEF ACCOUNTS OFFICER, KERALA WATER AUTHORITY, THIRUVANANTHAPURAM. 5. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVT., DEPARTMENT OF WATER RESOURCES, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. (ADDL.RESPONDENTS 4 AND 5 ARE IMPLEADED AS PER ORDER DATED 4.2.2008 IN I.A.NO.12680 OF 2007) ADV. SRI.J.KRISHNA KUMAR, SC, KWA FOR R.1TO3 R5 BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/06/2009, ALONG WITH WPC NO. 25639 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.26589 OF 2007-M APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PROCEEDINGS ORDER NO.E-70/89 DATED 10.12.89 OF 3RD RESPONDENT EXT.P2 TRUE COPY OF THE PROCEEDINGS NO.AB5 7648/77V DATED 7.12.1995 OF EXECUTIVE ENGINEER EXT.P3 TRUE COPY OF THE ORDER NO.AB5-7648/77/VOL.VI DATED 22.12.2000 OF EXECUTIVE ENGINEER EXT.P4 TRUE COPY OF ORDER NO.E1-848/87 DATED 31.5.07 OF 3RD RESPONDENT EXT.P5 TRUE COPY OF THE REPRESENTATION DATED 12.2.07 OF PETITIONER TO 3RD RESPONDENT EXT.P6 TRUE COPY OF G.O.(MS) NO.48/07/WRD DATED 7.8.07 EXT.P7 TRUE COPY OF ORDER NO.KWA/JB/E3-7333/1999 DATED 17.4.06 OF 1ST RESPONDENT EXT.P8 TRUE COPY OF RELEVANT PORTION OF THE SERVICE BOOK OF THE PETITIONER EXT.P9 TRUE COPY OF LETTER NO.E1/436/92 DATED 7.5.07 OF 2ND RESPONDENT EXT.P10 TRUE COPY OF THE LIST CONTAINING SOME OF THE DETAILS OF SERVICE OF THE PETITIONER EXT.P11 TRUE COPY OF THE APPLICATION DATED 13.10.05 OF PETITIONER EXT.P12 TRUE COPY OF THE LETTER DATED 2.1.06 OF THE CHIEF ENGINEER EXT.P13 TRUE COPY OF THE REPRESENTATION DATED 5.5.07 OF THE PETITIONER TO 1ST RESPONENT EXT.P14 TRUE COPY OF THE REPRESENTATION DATED 11.7.07 OF PETITIONER TO 1ST RESPONDENT EXT.P15 TRUE COPY OF THE LETTER DATED 9.11.07 OF THE 1ST RESPONDENT EXT.P16 TRUE COPY OF THE LETTER DATED 4.10.07 OF THE 1ST RESPONDENT EXT.P17 TRUE COPY OF G.O.(Rt) 215/08/WRD DATED 16.2.08 / TRUE COPY / S. SIRI JAGAN, J. ------------------------------------------------- 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 -:2:- 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 -:3:- 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 -:4:- 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 -:5:- 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 -:6:- 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 -:7:- 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 -:8:- 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 -:9:- 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 -:10:- 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 -:11:- 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