IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 WA.No. 2916 of 2009 ----------------------- AGAINST THE JUDGEMENT IN WPC.37573/2008 Dated 19/12/2008 .................... APPELLANT/PETITIONER: --------------------------- PUSPANGADHAN, AGED 56 YEARS, S/O.SAHADEVAN, PRAVEEN DIVYA BHAVAN, MUKKOLA, NETTAYAM P.O., KACHANI, THIRUVANANTHAPURAM, SENIOR GRADE DRIVER (RETD.). BY ADV. SRI.KILLIYOOR P.GOPALAKRISHNAN NAIR SMT.ARATHI ASHOK RESPONDENTS/RESPONDENTS: ----------------------------------- 1. THE KERALA WATER AUTHORITY, REPRESENTED BY MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXECUTIVE ENGINEER, WATER WORKS CENTRAL SUB DIVISION, THIRUVANANTHAPURAM. BY ADV. SRI.C.UNNIKRISHNAN, SC, KWA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. ------------------------------------------ W.A. No. 2916 of 2009 ------------------------------------------ Dated this the 18th day of March, 2011 JUDGMENT J.Chelameswar, C.J. Aggrieved by a judgment dated 19th December, 2008 in W.P.(C) No.37573 of 2008, the unsuccessful petitioner therein preferred the present writ appeal. 2. The writ petition is filed aggrieved by an order of termination from the service of the writ petitioner. The order of termination is dated 14th October, 2005. Such an order came to be passed in view of the conclusion of the employer that the date of birth of the appellant was wrongly entered in the service records and consequently the appellant had continued in service notwithstanding the fact that he ought to have retired on 31.05.2005 in view of his reaching the age of superannuation. The relevant portion of the order reads as follows: “The date of birth of Sri.S.Pushpangathan, Senior Grade Driver, is seen corrected in his service book as on 03.05.1956. The original date of birth of the incumbent is 03.05.1950 (Three-five-Nineteen fifty). Sri.S.Pushpangathan, Senior Grade Driver, was due to retire on superannuation on the AN of 31.05.2005. A memo was issued to Sri.S.Pushpangathan on 6.9.2005. The reply furnished by the W.A..No.2916 of 2009 - 2 - incumbent dated 12/9/2005 received in this office on 19.9.2005 not satisfactory. O R D E R In this circumstances, as noted above, Sri.Pushpangathan, Senior Grade Driver, is terminated from service with effect from the AN of 31.5.2005. The salary and other allowances disbursed to the incumbent, during the overstayal period will be recovered from his terminal surrender and other pensionary benefits due to him and all other actions will be taken as per the rules and regulations in force.” 3. It can also been seen from the above order that by the impugned order not only the employment of the appellant was terminated, but the employer also sought to recover the salary and other allowances paid to the appellant during the period which the appellant served beyond the period of the actual date of retirement. 4. A learned Judge of this Court dismissed the writ petition on the ground that the writ petition is barred by laches as the writ petitioner approached this Court after a lapse of more than three years. 5.The respondents are already represented by learned Standing Counsel Sri.C.Unnikrishnan. Heard learned counsel for the appellant and the learned Standing Counsel for the respondents. 6. We see no reason to interfere with the judgment under appeal except to the extent of holding that in view of the fact that the W.A..No.2916 of 2009 - 3 - service of the appellant was actually availed by the respondent/ employer, we are of the opinion that it is unjust to permit the employer to recover the amount already paid to the appellant. 7. The order impugned in the writ petition is set aside to the limited extent indicated above. The writ appeal is partly allowed. J.Chelameswar, Chief Justice P.R.Ramachandra Menon, Judge vns