Allowed

G.Mohankumar v. State of Kerala

Kerala HC13 Dec 2016WP(C)/24246/2009

Case brief

AI extract

What is this about?

This High Court of Kerala judgment set aside orders withholding an amount from a retired teacher's DCRG without prior notice based on alleged pay fixation error. The Court held such recovery is unsustainable under KSR Note 3 to Rule 3 of Part III and the Apex Court decision in Rafiq Masih, directing immediate release of funds.

What did the court decide?

Exhibits P5 and P10 are set aside; withheld amount released to petitioner within two months.

G.Mohankumar Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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TUESDAY, THE 13TH DAY OF DECEMBER 2016/22ND AGRAHAYANA, 1938

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WP(C).No. 24246 of 2009 (A)

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PETITIONER:

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G.MOHAN KUMAR, H.S.A.(RETD.), NSS HIGH SCHOOL, PULLIKANAKKU, KAYAMKULAM, RESIDING AT SOUPARNIKA, OLAKETIYAMBALAM PO, MAVELIKARA, ALAPPUZHA DISTRICT.

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BY ADVS.SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN

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RESPONDENT(S):

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1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.

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3. THE DEPUTY DIRECTOR OF EDUCATIONAL, ALAPPUZHA.

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4. THE DISTRICT EDUCATION OFFICER, MAVELIKARA.

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5. THE ACCOUNTANT GENERAL (A&E), THIRUVANANTHAPURAM.

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BY GOVERNMENT PLEADER SMT.RAJI T.BHASKAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 24246 of 2009 (A)

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXT. P1	: TRUE COPY OF THE PENSION PAYMENT ORDER DATED 4.3.2008.
EXT. P2	: TRUE COPY OF THE LETTER DATED 23.1.2007 FROM THE 3RD RESPONDENT.
EXT. P3	: TRUE COPY OF THE ORDER DATED 5.2.99.
EXT. P4	: TRUE COPY OF THE LETTER DATED 17.9.2007 FROM THE 3RDRESPONDENT.
EXT. P5	: TRUE COPY OF THE ORDER NO.B2-9609/07 DATED 22.12.2007 OF THE 4TH RESPONDENT.
EXT. P6	: TRUE COPY OF THE LIABILITY CERTIFICATE ALONG WITH THE LAST PAY CERTIFICATE.
EXT. P7	: TRUE COPY OF THE REPRESENTATION DATED 9.10.2008 SUBMITTED BY THE PETITIONER BEFORE THE 1ST AND 2ND RESPONDENT.
EXT. P8	: TRUE COPY OF THE JUDGMENT DATED 11.12.08 N WPC.NO.36487/2008 OF THIS HON'BLE COURT.
EXT. P9	: TRUE COPY OF THE COMMUNICATION FROM THE AG TO THE DY. DIRECTOR DATED 19.2.2009.
EXT. P10	: TRUE COPY OF THE ORDER NO.R.5/73536/08/DPI DATED 1.8.2009 OF THE 2ND RESPONDENT.
EXT. P11	: TRUE COPY OF THE RELEVANT EXTRACT OF THE PAY REVISION ORDER G.O.(P)NO.399/178/FIN. DATED 5.2.99.
EXT. P12	: TRUE COPY OF THE ORDER NO.G.O.(P)NO.773/99/(10)/FIN. DATED 5.3.1999.
EXT. P13	: TRUE COPY OF G.O.(P)NO.1503/(180)/99/FIN. DATED 22.6.999.

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RESPONDENTS' EXHIBITS:

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EXT. R3A : A TRUE ID/529	PHOTOSTAT /1/07-08/59	COPY OF 3 DATED	THE LETTER NO.P16/FILE 25.11.97.
EXT. R3B : A TRUE	PHOTOSTAT	COPY OF	THE DECLARATION.
EXT. R3C : A TRUE DATED	PHOTOSTAT 28.4.1999	COPY OF	THE DECLARATION
EXT. R3D : A TRUE DATED	PHOTOSTAT 25.10.2007	COPY OF	THE DECLARATION //TRUE COPY//
			P.S. TO JUDGE

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mbr/

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ANU SIVARAMAN, J.

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W.P(C).No. 24246 of 2009

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----------------------------------------------Dated this the 13^th December, 2016

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JUDGMENT

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The petitioner challenges Exhibit P10 order withholding of an amount of Rs.35,598/- from his DCRG. He also prays for quashing of Exhibits P5 and P6 orders issued fixing liability on him without notice. It is submitted that though the petitioner retired from service on 31.3.2007, his retirement benefits were not sanctioned and disbursed. Thereafter, by Exhibit P5 order dated 22.12.2007, the District Educational Officer informed the petitioner that he had undertaken to refund any excess drawal on account of fixation of his pay pursuant to the pay revision order, 1997. Since there is an error in the said fixation, the petitioner is liable to refund an amount of Rs.35,598/-. By Exhibit P10 order, the Director of Public Instruction also confirmed the order of the District Educational Officer and directed the withholding of the said amount from the petitioner's DCRG.

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Heard learned counsel for the petitioner and the learned Government Pleader appearing for the respondents.

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WP(C).24246/09

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A counter affidavit has been filed on behalf of the 3^rd respondent contending that there was an error in the fixation of pay in pursuance of the pay revision order dated 25.11.1998. It is stated that since the petitioner had undertaken to refund any amounts found due on account of the fixation of pay, he was liable to refund the excess drawn. The liability on account of the above fixation was calculated and recovered from the petitioner's DCRG. It is further stated that it was on account of the objection regarding fixation of petitioner's pay that his pensionary benefits were delayed and there is no undue delay. The petitioner placed reliance on the judgment of this Court in W.P(C).No.17280 of 2010, wherein it has been found that the option exercised by a similarly situated teacher was perfectly in order and that the option for pay revision order, 1997 will automatically be shifted to reoption as per the Government order dated 5.2.1999. The objection similar to the one raised in Exhibit P5 was therefore found to be bad in law and set aside.

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I have considered the contentions advanced on either side. The petitioner had retired from service on 31.3.2007. Till the date of his retirement, no notice was served on him with regard to the error in the fixation of pay. Going by the judgment of this

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WP(C).24246/09 3

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Court relied upon by learned counsel for the petitioner, there is no error in fixation of the petitioner's pay and the objection on merits itself is unsustainable. I am of the view that withdrawing or withholding of the amount from the DCRG of a retired employee can only be in terms of the provisions contained in Note 3 to Rule 3 of Part III KSR and prior notice is required before fixing any liability on a retired employee. Learned counsel for the petitioner also relied on a decision of the Apex Court in State of Punjab v. Rafiq Masih (While Washer) [(2015)4 SCC 334] to contend that no recovery is possible even in case of an error in fixation of pay from a retired employee. In any view of the matter, I am of the opinion that Exhibits P5 and P10 orders which are issued to the petitioner after his retirement are unsustainable in law.

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In the result, Exhibits P5 and P10 are set aside. It is directed that the amount withheld from the petitioner's DCRG will be released to him at the earliest, at any rate, within two months from the date of receipt of a copy of this judgment.

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The writ petition is ordered accordingly.

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ANU SIVARAMAN

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JUDGE

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vgs15/12

G.Mohankumar v. State of Kerala

Case brief

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G.Mohankumar v. State of Kerala

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