IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 4TH FEBRUARY 2010 / 15TH MAGHA 1931 WP(C).No. 20627 of 2009(W) --------------------------------------- PETITIONER(S): ----------------------- DINAKARAN NAIR, (SENIOR SUPERINTENDENT, (RETD), I & P CIRCLE, THRISSUR), ASWATHY H.NO. 1/76, MYNOOTIL LANE, PULINCHODE, THAIKKATTUKARA P.O., ALUVA-683 106. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, IRRIGATION & ADMINISTRATION, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER, INVESTIGATION & DESIGN (IDRB), VIKAS BHAVAN, THIRUVANANTHAPURAM. 4. THE ADMINISTRATIVE ASSISTANT, VIGILANCE, OFFICE OF CHIEF ENGINEER, IRRIGATION AND ADMINISTRATION, THIRUVANANTHAPURAM. 5. THE SUPERINTENDING ENGINEER, INVESTIGATION AND PLANNING CIRCLE, THRISSUR. GOVERNMENT PLEADER SRI.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.20627/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE STATEMENT OF ALLEGATION ISSUED BY CHIEF ENGINEER (I&A) DTD. 24.12.2002. P2:- COPY OF THE REPLY TO THE STATEMENT OF ALLEGATION DTD. 24.12.01 OF THE PETITIONER. P3:- COPY OF THE DECLARATION BY A.MANY, WORKER GRADE II, MI SECTION, ALUVA TO ASST. EXECUTIVE ENGINEER, M.I. SUB SECTION ALUVA. P4:- COPY OF THE GAZETTE NOTIFICATION DTD. 24.8.07 FROM WATER RESOURCES (A) DEPARTMENT NOTIFICATION DT. 7.8.07. P5:- COPY OF THE ORDER DTD. 7.9.07 OF THE CHIEF ENGINEER IRRIGATION & ADMINISTRATION , THIRUVANANTHAPURAM. P6:- COPY OF THE G.O.(RT) NO.269/08/WRD DT. 29.2.08. P7:- COPY OF THE ORDER DTD. 29.2.08 OF THE CHIEF ENGINEER (I&A) THIRUVANANTHAPURAM. P8:- COPY OF THE ORDER DT. 29.1.08 OF THE ACCOUNTANT GENERAL. P9:- COPY OF THE G.O.(RT) NO.234/08/WRD DTD. 20.2.08. P10:- COPY OF THE G.O.(MS) NO.39/08/WRD DTD. 19.8.08. P11:- COPY OF THE LETTER DTD. 29.11.08 FROM THE SUPERINTENDING ENGINEER. P12:- COPY OF THE G.O.(RT) NO.24/2009 WRD DTD. 8.1.09. P13:- COPY OF THE REPRESENTATION DTD. 29.4.2009 FROM THE PETITIONER BEFORE IST RESPONDENT. P14:- COPY OF THE LETTER FROM THE SUPERINTENDING ENGINEER, I&P CIRCLE, THRISSUR DTD. 6.4.09. P15:- COPY OF THE LETTER DTD. 6.4.09 WITH THE FORWARDING LETTER DTD. 8.5.09. P16:- COPY OF THE LETTER DTD. 13.5.2009 FROM THE PETITIONER TO THE CHIEF ENGINEER, I&A TVM. P17:- COPY OF THE ORDER DT. 7.8.09. P18:- COPY OF THE GRATUITY PAYMENT ORDER DTD. 9.8.08. TRUE COPY P.A. TO JUDGE tss C.T.RAVIKUMAR, J. ---------------------------------------- W.P.(C) NO. 20627 OF 2009 ---------------------------------- Dated this the 4th day of February, 2010 JUDGMENT The petitioner is retiree from the service of Water Resources Department. On 29.2.08 he retired from its service as a Senior Superintendent. On account of the pendency of disciplinary action initiated against him along with seventeen others his retirement benefits were not disbursed. In fact, prior to his retirement, Government have passed order dated 20.2.08. As per the same 18 persons were found responsible for the irregular fixation of pay and allowance of the regularised CLR/SLR workers. On account of this the said amount allegedly paid in excess was fixed as liability against all the 18 persons including the petitioner herein. As per Ext.P9 the petitioner was saddled with the liability of an amount of Rs.295,198/- which was W.P.(C) NO. 20627 OF 2009 2 the proportionate loss caused to the Government. The disciplinary action initiated against the petitioner was thus finalised as Ext.P9. This writ petition has been filed challenging Ext.P9 order. 2. In the writ petition, the petitioner has produced Ext.P10 Order dated 19.8.08 issued by the 1st respondent. The matter relating the alleged erroneous fixation of pay and consequential excess payment was examined by the government in detail and consequentially, as per Ext.P10 it was ordered as here under; “(i) The arrears of pay and allowances to the tune of Rs.1.41 crores paid to 128 regularised CLR/SLR workers of MI Division, Ernakulam from 18.03.99 is waived. (ii) Excess pay and allowance paid to CLR/SLR workers from 18.3.99 till 1.1.2008 consequent to the erroneous fixation is also waived.” 3. Thus it is obvious that as per Ext.P10, the amount involved and fixed as excess payment in this issue was waved. Ext.P12 is an order dated 8.1.09 whereby disciplinary actions initiated against 6 among 18 persons involved in the issue were dropped. Ext.P17 is another W.P.(C) NO. 20627 OF 2009 3 order dated 7.8.09 relating the said issue. As per the same disciplinary action initiated against another 8 persons included in the issue were dropped. In Ext.P17, reference has been made against the action initiated by the petitioner and the same reads as here under; “The case of Sri.A.K.Divakaran Nair Senior Superintendent (Rtd) is not include in this Order as the Disciplinary action against him was already finalized by Govt.vide GO(Rt)234/08/WRD dated 20.2.2008, by fixing a liability of Rs.2,95,198/-. The proposal for reviewing the orders in respect of Sri.A.K.Dinakaran Nair, Senior Superintendent (Rtd) will be taken up with Government separately.” 4. Thus, it is a evident from Ext.P17 that the disciplinary action against the petitioner was not dropped solely account of the fact that the disciplinary action initiated against him was already finalised as per order dated 20.2.08 and amount of Rs. 2,95,198/- was fixed as liability. It would further reveal that in view of the said situation proposal was mooted to take up the issue of the petitioner before the Government for review. W.P.(C) NO. 20627 OF 2009 4 5. The learned counsel for the petitioner submitted that among 18 persons against whom disciplinary actions were initiated in relation to the said incident actions against all the others except the petitioner were dropped. It was in the said circumstance that the respondents themselves proposed to place the matter before the Government for reviewing the order by which the petitioner was saddled with the liability to the tune of Rs.2,95,198/-. In the circumstances it is only proper for the 1st respondent to look into the issue of reviewing Ext.P9 order whereby the amount of Rs.2,95,198/- was fixed as liability on the petitioner, in the light of Ext. P10, G.O.(MS) NO.39/2008 WRD dated 19.8.08, Ext.P12 GO(RT) No.24/2009 /WRD dated 8.1.09 and also order No. VIG 5/339/01/Irrgn dated 7.8.09. In the light of the facts borne out from records it is evident that except in the case of petitioner, disciplinary actions initiated relating the issue of excess payment to the regularised CLR/SLR workers have been dropped. This fact is also to be taken in to consideration while considering W.P.(C) NO. 20627 OF 2009 5 the review. Subject to the outcome of the said exercise of review the claim of the petitioner for regularisation of the promotion granted to him as per Ext.P6 shall also be considered by the 1st respondent. The claim of the petitioner that he was entitled to be promoted as Senior Superintend with effect from 7.1.07 and also was entitled to to consequential benefits on such retrospective promotion shall also be considered by the 1st respondent. Needless to say, in view of the facts obtained in this case there is no reason to retain amount sanctioned to the petitioner less the amount fixed as liability as per Ext.P9. Admittedly, besides the said amount the petitioner is also entitled to get leave surrender benefit and arrears of salary to the tune of 1,76,860/-as has been admitted in paragraph 5 of the counter affidavit. Therefore, there shall be a direction to the first respondent to release the entire admitted amounts to the petitioner less Rs.2,95,198/-, fixed as liability as per Ext.P9 within a period of one month from the receipt of copy of this judgment. The question of releasing the amount of W.P.(C) NO. 20627 OF 2009 6 Rs.2,95,198/- has to be decided depending upon the outcome of the review of Ext.P9, which shall be done within two months from the date of receipt of copy of this judgment, in the light of the observation made in this judgment. The writ petition is allowed to above extent. C.T.RAVIKUMAR, JUDGE. mns