IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 6TH JUNE 2011 / 16TH JYAISHTA 1933 WP(C).No. 6833 of 2007(L) ------------------------- PETITIONER(S): --------------- M.S.BALAKRISHNAN NAIR, AGED 59 YEARS, SON OF LATE M.A.CHANDRASEKHARAN NAIR, RETIRED SENIOR LABOUR INSPECTOR, DOCK LABOUR DIVISION, COCHIN PORT TRUST, WILLINGDON ISLAND, KOCHI- 682 003, RESIDING AT LALITHALAYAM, THRIKKARIYOOR P.O., KOTHAMANGALAM. BY ADV. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SMT.LAKSHMI B.SHENOY SRI.M.S.ABDUL RAHIM SRI.ABU MATHEW RESPONDENT(S): --------------- 1. COCHIN PORT TRUST REPRESENTED BY ITS CHAIRMAN, WILLINGDON ISLAND, KOCHI- 682 003. 2. THE ADMINISTRATIVE OFFICER, DOCK LABOUR DIVISION, COCHIN PORT TRUST, WILLINGDON ISLAND, KOCHI- 682 003. ADV. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE FOR R1-2 SRI.E.K.NANDAKUMAR FOR R1-2 SRI.A.K.JAYASANKAR NAMBIAR FOR R1-2 SRI.ANIL D. NAIR FOR R1-2 SMT.A.SIRJI FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 6833/2007. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE NOTICE DTD.24.7.84 BY R1. P2. COPY OF THE RESOLUTION NO.57 DTD.31.8.84. P3. COPY OF THE PENSION PAYMENT ORDER BY R1. P4. COPY OF THE MEMO DTD.8.11.04 BY R2. P5. COPY OF THE PETITION DTD.27.12.04 TO R1. P6. COPY OF THE JUDGMENT IN W.P.(C).No. 7815/2005 OF THIS COURT. P7. COPY OF THE OBJECTIONS DTD.19.10.06 TO R1. P8. COPY OF THE ORDER DTD.13.11.2006 BY R1. P9. COPY OF THE OFFICE MEMORANDUM DTD.1.4.83. RESPONDENT(S)' EXHIBITS: R1A. COPY OF THE OBJECTION DTD.7.1.94 OF THE RESIDENT AUDITOR. B. COPY OF THE RELEVANT EXTRACT OF THE FUNDAMENTAL RULES. C. COPY OF THE GIMF MEMO DTD.11.4.63. D. COPY OF THE RELEVANT EXTRACT OF THE FUNDAMENTAL RULES. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 6833 of 2007 ================== Dated this the 6th day of June, 2011 J U D G M E N T The petitioner was originally an employee of the Cochin Dock Labour Board. He got employment in the Cochin Dock Labour Board after putting in prior military service. He got the employment in the Dock Labour Board in a vacancy reserved for ex-servicemen. Subsequently, the Cochin Dock Labour Board merged with the Cochin Port Trust. The petitioner retired from service on 31.5.2004. On 24.7.1984 after entering his service, his pay was fixed on the basis of Ext.P9 Government order governing fixation of pay of ex-servicemen on employment in civil service. On 8.11.2004, 20 years after the fixation and six months after his retirement, he was served with Ext.P4 notice refixing his pay as on his date of entry into service and directing him to refund an amount of ` 1,58,400/- allegedly drawn by him in excess of such refixation. Despite Ext.P5 objections filed by the petitioner, by Ext.P8 order, the 1st respondent confirmed Ext.P4. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “(a) Call for the records and files leading to Ext.P8 passed by 1st respondent and quash Ext.P8 by issuance of writ in the nature of certiorari, or any other appropriate writ, order or direction; (b) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondents to restore petitioner's pay as it was prior to the re- fixation undertaken in terms of Exts.P4 and P8. w.p.c.6833/2007 2 (c) Issue a writ in the nature of mandamus or any other appropriate writ, order of direction commanding the respondents to re-fix terminal benefits payable to petitioner, reckoning petitioner's last drawn monthly basic pay as Rs. 9,180/- (Rupees Nine thousand one hundred and eighty only) and pay the balance/arrears due thereunder to the petitioner with interest at the rate of 18% per annum from 1.6.2004 until date of payment; (d) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondents to refund the petitioner, the sum of Rs. 1,62,290/- (Rupees One lakh sixty two thousand two hundred ninety only) deducted from his ex-gratia (VRS) benefit, with interest at the rate of 18% per annum from 1.6.2004 until date of payment.” 2. According to the petitioner, the action of the respondents is bad for two reasons. The first is that there was no mistake in his fixation of pay because it was fixed in accordance with Ext.P9 office memorandum issued by the Government of India in respect of fixation of pay of the ex-servicemen re-employed in public enterprises, which was the one applicable to the petitioner at the time of his entry into service. Secondly, it is submitted that it would be totally unjust and unreasonable to pass orders visiting such lowly paid employee like the petitioner with such drastic consequence of recovery of a huge sum from him, on the ground that the pay fixed 20 years ago was wrong. 3. Counter affidavit has been filed on behalf of the respondents taking the stand that the fixation of pay in accordance with Ext.P9 office memorandum was wrong insofar as the pay of the petitioner ought to have been fixed in accordance with Rule 27 of the w.p.c.6833/2007 3 Fundamental Rules. The respondents have placed before me an office memorandum dated 11.4.1963, produced as Ext.R1(c), which, according to them, is in tune with Rule 27 of the Fundamental Rules. On the question of delay, the counsel for the respondents would place before me decisions of this Court and the Supreme Court contending that such delay does not stand in the way of refixation of pay mistakenly made and recovery of excess amount paid. The petitioner has also placed before me decisions to the contrary. 4. I have considered the rival contentions in detail. 5. Admittedly, the petitioner is an ex-serviceman re-employed in the Cochin Port Trust giving reservation applicable to ex- servicemen. The issue in this writ petition relates to refixation of pay taking into account the pension received by the petitioner from the Armed Forces as an ex-serviceman. The relevant portion of Ext.P9 reads thus: “In the Central Government Departments, pension not exceeding Rs. 125/- per mensum i.e. the actual pension of the first Rs. 125/- of the pension were being ignored while fixing the pay of the ex- servicemen who retired before attaining the age of 55 years. The question of raising the limit of present ceiling of pension which has to be ignored in fixing of pay on re-employment of the ex-servicemen has been under consideration of the government for some time and it has been decided that in the case of those ex-servicemen retiring before attaining the age of 55, the pension as indicated below may be ignored in fixing their pay on re-employment. i) in the case of Service Officers, the first Rs. 250/- of pension. w.p.c.6833/2007 4 ii) in the case of personnel below commissioned Officer rank, the entire pensions. Note:- The pension for the purpose of these orders includes, pension equivalent of gratuity and other forms of retirement benefits.” (underlining supplied) 6. The contention of the respondents is based on Ext.R1(c), which reads thus: “(7) It has been decided, as a special case, that service rendered as a combatant clerk (Sepoy and above and equivalent ranks in Navy & Air Force) may be treated as equivalent to service as L.D.Cs/Junior clerks in Civil Departments irrespective of the pay drawn in the Armed Forces and that when such persons are absorbed in posts of L.D.Cs/Junior clerks in Civil Departments after their release/retirement from the Armed Forces, their initial pay in the posts of L.D.Cs/Junior clerks may be fixed at a higher state in the scale above the minimum equal to the number of completed years of service as combatant clerk. 2. The Pension and pension equivalent of gratuity, if any, which does not exceed Rs. 15 per mensum will be ignored. In respect of pensionary benefits exceeding Rs. 15 per mensum the authority competent to determine the pay will have discretion to ignore Rs. 15 or any smaller amount that it may consider justified depending upon the circumstances of the case.” Ext.R1(c) is dated 11.4.1963, whereas Ext.P9 is dated 6.6.1983 issued 20 years after Ext.R1(c). Therefore, I am of opinion that Ext.P9 should prevail over Ext.R1(c). Admittedly the petitioner is an ex-serviceman below commissioned officer in rank. That being so, by virtue of Ext.P9, the entire pension received by the petitioner is liable to be excluded for the purpose of fixation of his pay, which only has been done at the time of fixation of his pay. For that, Ext.R1(c), which was issued 20 years prior to Ext.P9, is not at all applicable. Therefore, I am of opinion w.p.c.6833/2007 5 that the application of Ext.R1(c) for fixation of pay of the petitioner is clearly in error. As such, there is no reason for refixation of pay and recovery of the alleged excess amount paid, from the petitioner. 7. Even otherwise, despite the protestations of the respondents based on various decisions, I am of opinion that for coming to the conclusion that refixation of pay after 20 years, that too, the petitioner having not contributed to the alleged mistake in fixiton in any way, after a long period of 20 years, that too, after the retirement of the petitioner, is patently unjust and unreasonable, it is not necessary to refer to any precedent. For the above reasons, the petitioner is entitled to succeed in this writ petition. Accordingly, Exts. P4 and P8 are quashed. It is declared that the original refixation of pay of the petitioner was in order and that after 20 years of fixation, it could not have in any way been refixed directing the petitioner to refund any alleged excess. Consequently, the petitioner would be entitled to all the benefits as if the pay of the petitioner has been rightly fixed at the time of his entry into service. Consequently, he would be entitled to his retirement benefits calculated on the basis of the pay he was drawing at the time of his retirement. If on account of the refixaiton any retirement benefits have been reduced, the petitioner is entitled to get arrears of w.p.c.6833/2007 6 the same. Orders in this regard shall be passed and arrears due to the petitioner disbursed, as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge