IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 WP(C).No. 5763 of 2005(J) -------------------------------- PETITIONER : -------------------- C.C.JOSEPH, AGED 56 YEARS, S/O.CHACKO, MOBILE CRANE OPERATOR GRADE-II (RETD), KSEB, CHERUPACHIKARA HOUSE, KEEZHILLAM P.O., ERNAKULAM DISTRICT. BY ADV. MR.P.M.MOHAMMED SHIRAZ RESPONDENTS : ----------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM P.O., TRIVANDRUM. 2. THE CHIEF INTERNAL AUDITOR, KSEB, VYDYUTHI BAHVAN, PATTOM P.O., TRIVANDRUM. 3. THE CHIEF ENGINEER (HRM), KSEB, VYDYUTHI BHAVAN, PATTOM P.O., TRIVANDRUM. R1 TO R3 BY STANDING COUNSEL MR.C.K.KARUNAKARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.5763 of 2005 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of Article – IV. Ext.P2 :- Copy of statement of pay fixation of petitioner dated 27/11/1995. Ext.P3 :- copy of proceedings dated 12/01/1999 of 1st respondent. Ext.P4 :- Copy of letter No.EBI/Pay Fixn-Audit/98-99/2048 dated 12/02/1999. Ext.P5 :- Copy of Circular No.3/LTS-93 dated 25/10/1995. Ext.P6 :- Copy of Judgment dated 03/06/2002 in O.P.No.5315 of 1999. Ext.P7 :- Copy of Judgment dated 21/07/2004 in W.P.(C) No.15923 of 2004. Respondent's Exhibits :- NIL //True Copy// P.A. To Judge S. SIRI JAGAN, J ------------------------- W.P.(C.) No. 5763 of 2005 ------------------------------------ Dated this the 9th day of March 2010 J U D G M E N T The petitioner is a retired employee of the Kerala State Electricity Board. The grievance voiced by him in this writ petition is regarding the alleged wrong interpretation of Ext.P1 long term settlement signed between the Electricity Board and its unions on the basis of Ext.P5 clarificatory circular issued by the Board in respect of the long term settlement. By Ext.P1 long term settlement, the management and the unions agreed for revision of scales of pay of the workmen which contained the mode of fixation of pay in the revised scale of pay. Consequently the petitioner's pay in the revised scale was fixed by Ext.P2 order in accordance with the Rules of fixation given in Clause 8 of Ext.P1. Later on, that was sought to be modified on the basis of Ext.P5 Circular and excess amounts were directed to be recovered from the petitioner. The reason for the same is that prior to the revision of pay the petitioner was actually getting salary less than what he was to get in the minimum of the W.P.(C) No.5763 of 2005 -2- revised scale of pay prescribed for the petitioner. Under Clause 8(g) of Ext.P1 it was stipulated that the next increment of the employee whose salary was fixed in the revised scale of pay would be given on the date on which the normal increment falls due in the pre-revision scale. The pay of the petitioner was to be fixed with effect from 01.08.1993 as per Ext.P1. The petitioner's normal increment date was 1st September of every year. Petitioner's pay was fixed in the revised scale of pay on 01.08.1993. Since prior to the revision he was drawing pay less than that in the minimum of the revised scale of pay, in order to fix the pay of the petitioner in the minimum of the revised scale of pay, Rs.104/- was to be added. Since the petitioner's normal date of increment was 1st of September as per Clause 8(g) of Ext.P1, he was given increment on 01.09.1993. Next year he was given his next increment on 01.09.1994. The Electricity Board took the view that since in order to make the petitioner's pay in the minimum of revised scale of pay an amount of Rs.104/- had to be added, he should not be given the increment due to him on 01.09.1993. It is consequent to the same that by Ext.P3 the so called excess amount drawn by the petitioner is sought to W.P.(C) No.5763 of 2005 -3- be recovered. The petitioner approached this Court challenging the said recovery by filing O.P.No.5315 of 1999, in which the learned Judge of this Court was passed the following judgment :- “The petitioner is challenging Exts.P3 and P6 orders in this Original Petition. Ext.P3 is the order by which the salary has been revised and the same has been done relying on Ext.P6 circular. Ext.P1 is the Board order implementing the settlement with the workmen dated 2.8.95. Article IV of the said settlement contains detailed provisions regarding the revision of wages and salaries including fixation of pay. As per Clause 8(g) of Ext.P1, if the fixation of salary is in the revised scale of pay, the next increment will be paid on the date on which normal increment would have been due to the employee in the pre-revised scale. The petitioner was granted that benefit. But according to the respondents, at the time of fixation of his pay, his pay was far below the minimum of the revised scale of pay and as a result Rs.104/- were added to the basic pay of the petitioner to make it reach the minimum of the scale of pay. The said amount granted is more than the value of the increment and therefore, persons like the petitioner whose basic pay was far below the minimum of the scale of pay were not eligible for the benefit under Clause 8(g). It has been so ordered as per Ext.P6. The learned counsel for the petitioner submits that the Financial Advisor and Chief Accounts Officer cannot modify Ext.P1 order by issuing Ext.P6 Circular. There is considerable force in the submission. But what has been done as per Ext.P6 is only to fill the lacuna in Ext.P1. Ext.P1 is silent as to the case of persons whose basic pay after adding the minimum increment and weightage is below the minimum of the scale of pay. It is contended by the respondents that only by a mistake, the petitioner has been granted increment with effect from the date the W.P.(C) No.5763 of 2005 -4- increment was due in the pre-revised scale. Whatever be that, the respondents are not entitled to recover the arrears from the petitioner as there is no allegation of fraud on the part of the petitioner. The payment was made and the same was received in good faith. Therefore, the petitioner is entitled to retain what he was paid by competent Officers as wages. Therefore, directions in ext.P3 to recover the excess amount is quashed. The respondents may refix the pay of the petitioner in accordance with law.” Pursuant to the same again the petitioner's pay was fixed excluding the increment due on 01.09.1993 and calculating the pensionary benefits accordingly. It is under the above circumstances the petitioner has approached this Court seeking the following reliefs :- “I. Call for records leading to Ext.P5 Circular and issue a Writ of Certiorari or any other appropriate Writ, Order or Direction quashing Ext.P5 Circular, II. Declare that petitioner is entitled to claim increment from the date on which the normal increment falls due in the pre-revised scale as provided in Clause 8(g) of Article-IV of Long term settlement, 1995, III. Issue a writ or Mandamus or any other appropriate writ, order or Direction commanding respondents to fix the pay of the petitioner granting annual increment from 01/09/1993 onwards, and disburse all the consequential benefits, IV. Direct respondents to revise the retirement benefits of the petitioner, in accordance with pay fixation ordered from 01/09/1993” W.P.(C) No.5763 of 2005 -5- The counsel for the petitioner submits that the terms of Ext.P1 settlement are very clear. That settlement has been signed by the management and the unions. Therefore the management cannot unilaterally change the terms of Ext.P1 settlement without the junction of the unions which is, what has been done in Ext.P5. For the proposition that the management cannot unilaterally alter the terms of a settlement, the petitioner relies on the decision of the Supreme Court in M/s. Fabril Gasosa v. Labour Commissioner and others, AIR 1997 SC 954. 2. A counter affidavit has been filed by the Board taking the stand that since the petitioner had obtained an undue advantage which was not contemplated in Ext.P1, by adding Rs.104/- to his pay, while fixing the pay as per Ext.P1, that should be considered as the increment due on 01.09.1993 which only has been done in Ext.P5. They would therefore submit that there is nothing wrong in recovering the extra advantage received by the petitioner by giving him one increment also. 3. I have considered rival contentions in detail. Perhaps petitioner may have obtained an unintended advantage pursuant to Ext.P1, but that does not mean that the management can W.P.(C) No.5763 of 2005 -6- unilaterally alter the terms of the settlement. I do not find any ambiguity in the settlement, which requires to be clarified unilaterally. The Rules of fixation are very clear. In the process of fixation of pay, if the petitioner gets an unintended advantage that cannot be denied to him on the ground that it was an unintended advantage. As per the Rules of fixation given in Ext.P1, after the pay is fixed in the revised scale of pay as per Ext.P1, the workmen are entitled to their next increment on the date on which the normal increment falls due. Petitioner's pay has been fixed albeit granting him an advantage of Rs.104/-, which may have been unintended. Even then, the fixation is perfectly in accordance with Ext.P1. That being so, the petitioner cannot be denied the next increment due to him on 01.09.1993 as provided in Clause 8(g) of Ext.P1 simply because in the process of fixation of pay as per Clause 8, he had to be given Rs.104/- extra. As rightly pointed out by the learned Counsel for the petitioner, the Supreme Court has in M/s.Fabril Gasosa's case held that the management cannot unilaterally change the terms of a settlement when it was a written settlement. The relevant portion of that judgment reads this :- W.P.(C) No.5763 of 2005 -7- “A conjoint reading of Section 2(p) of the Act and Rule 58 (supra) unmistakably shows that the settlement contemplated by the said provisions is a written settlement and not an oral settlement. It is not in dispute that the 1986 settlement was a written settlement arrived at between the parties. It could not, therefore, be varied or modified except by a written settlement or by a written memorandum duly signed by the parties incorporating the terms of the so-called understanding. Section 92 of the Evidence Act, 1872 also lays down that when the terms of any contract, grant or settlement, as are required by law to be reduced to the form of a document, have been proved as per the provisions of Section 91 of the Evidence Act, no evidence of any oral agreement or settlement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to or subtracting from its terms. Thus, both on facts of the instant case as well as on the interpretation of law, the conclusion arrived at by the High Court that there was no oral understanding between the parties and that the so called oral agreement pleaded by the appellants could not in any case vary the terms of the 1986 settlement is unexceptionable.” Therefore the Electricity Board cannot unilaterally change the terms of Ext.P1 settlement by issuing a circular as done by them by issuing Ext.P5. Therefore I hold that the fixation of pay of the petitioner by Ext.P2 is perfectly in accordance with Ext.P1 and is not liable to be changed either on the basis of Ext.P5 or otherwise. Therefore the petitioner's retirement benefits also have to be computed in terms of fixation of pay done by Ext.P2. W.P.(C) No.5763 of 2005 -8- Orders in this regard shall be issued and arrears of retirement benefits due to the petitioner shall be disbursed as expeditiously as possible at any rate within a period of two months from the date of receipt of a copy of this judgment. Sd/- S. SIRI JAGAN, JUDGE //True Copy// P.A. To Judge Jvt