Allowed

C.K.Surendranath v. Kerala Forest Development Corporation Lt

Kerala HC5 Apr 2017WP(C)/17678/2011

Case brief

AI extract

What is this about?

The petitioner, a retired Divisional Manager, challenged recovery proceedings for alleged premature promotion excess pay. The Court allowed the petition, quashing the recovery orders. It held that vested benefits cannot be withdrawn due to later audit objections, especially as the promotional post existed and terminal benefits remain unaffected.

What did the court decide?

Exhibits P4 and the relevant part of P8 concerning the petitioner are quashed. Retained benefits must be returned within three months.

C.K.Surendranath Vs Kerala Forest Development… — Pension and Retirement Benefits | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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WEDNESDAY, THE 5TH DAY OF APRIL 2017/15TH CHAITHRA, 1939

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WP(C).No. 17678 of 2011 (H)

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PETITIONER:

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C.K.SURENDRANATH, DIVISIONAL MANAGER

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KERALA FOREST DEVELOPMENT CORPORATION LTD.,, THRISSUR.

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BY ADV. SRI.DEEPU THANKAN

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RESPONDENT(S):

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KERALA FOREST DEVELOPMENT CORPORATION LTD., AARANGAKONAM, KARAPUZHA, KOTTAYAM,

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REPRESENTED BY ITS MANAGING DIRECTOR - 686 007.

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STATE OF KERALA, REPRESENTED BY ITS SECRETARY, FOREST AND WILD LIFE (D) DEPARTMENT,

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GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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ACCOUNTANT GENERAL (AUDIT)

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KERALA, THIRUVANANTHAPURAM - 695 001.

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R, BY ADV. A.C. VIDHYA, GOVERNMENT PLEADER R BY SRI.V.G.ARUN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 17678 of 2011 (H)

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: 2 :

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1 : TRUE COPY OF THE ORDER DATED 03.09.1991.

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EXT.P2 : TRUE COPY OF THE ORDER OF THE MANAGING DIRECTOR OF THE 1ST RESPONDENT CORPORATION DATED 18.02.1998.

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EXT.P3 : TRUE COPY OF THE PROCEEDINGS OF THE MANAGING DIRECTOR DATED 16.03.2007.

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EXT.P4 : TRUE COPY OF THE LETTER OF THE 1ST RESPONDENT DATED 04.01.2011.

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EXT.P5 : TRUE COPY OF THE COMMUNICATION OF THE FIRST RESPONDENT CORPORATION DATED 13.07.2006.

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EXT.P6 : TRUE COPY OF THE COMMUNICATION OF THE FIRST RESPONDENT CORPORATION DATED 10.07.2007.

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EXT.P7 : TRUE COPY OF THE COMMUNICATION OF THE FIRST RESPONDENT CORPORATION DATED 20.11.2008.

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EXT.P8 : TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 22.06.2011.

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EXT.P9 : TRUE COPY OF THE INTERIM ORDER OF THIS HON'BLE COURT DATED 22.06.2011 IN W.P.(C) NO. 16683/2011.

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RESPONDENTS' EXHIBITS: NIL

//TRUE COPY//

P.A. TO JUDGE

DAMA SESHADRI NAIDU, J.

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W.P. (C) No. 17678 of 2011 (H)

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Dated this the 5^th day of April, 2017.

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JUDGMENT

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The petitioner joined the respondent Corporation on 08.10.1977 as a Field Assistant, Grade II. On 01.07.1987, he was promoted as a Field Assistant, Grade I; on 01.09.1991 as an Assistant Manager, Grade II; on 01.05.1994 as an Assistant Manager, Grade I; and finally on 16.03.2007 as a Divisional Manager. Later the petitioner retired in 2012.

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When the petitioner was in service, on 04.01.2011 the Corporation issued Ext.P4 order proposing to recover `21,552/- said to be the excess pay the petitioner had drawn as part of his salary. Objected to by the 3^rd respondent, the Accountant General (Audit), the Corporation proposed this recovery. In his Audit Report for 2001-02, the Accountant General pointed out that the petitioner had been prematurely promoted.

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Later, the Corporation issued Ext.P8 order detailing how it intends to recover the amount from the petitioner's salary.

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W.P.(C.) No. 17678/2011 -2-

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Aggrieved, assailing Ext.P8, the petitioner filed this writ petition. As this Court granted an interim stay against the recovery, the Corporation could not proceed further, but the petitioner retired in 2012, pending the writ petition.

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Indeed, in Ext.P4 order, the Corporation observed that the petitioner ought to have been promoted as the Assistant Manager, Grade I, in 1997. But he was prematurely promoted in 1994— three years in advance. On that count, the Corporation—especially because of the audit objection—sought to recover the putative excess salary.

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Earlier, under similar circumstances, in T. J. Radhakrishnan v. State of Kerala¹ involving the Corporation’s another employee, this Court rendered a judgment. Under similar circumstances—with minor factual variance, though—a learned single Judge has observed that the employee “had been granted the benefits validly and under proper acknowledgment by the Company,” so he cannot now be prejudiced by an order to his detriment. Drawing precedential support from State of Punjab v Rafiq Masih² of the

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Supreme Court, the learned Single Judge has held that when

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1 Judgment, dt.10.03.2017, in W. P. (C) No.17249 of 2011

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2 [(2015) 4 SCC 334],

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W.P.(C.) No. 17678/2011 -3-

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benefits have already been paid to an employee, for no fault of his and without any vitiating circumstances attributable to him, the employer cannot withdraw the benefit to that employee merely because, later, the extended benefit was found irregular.

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In the end, though the learned single Judge quashed the recovery proceedings, his Lordship has, however, observed that about the post the employee had been promoted to, the Government should determine on the employee’s representation whether it could be approved. Only on the Government’s determination should the employee’s entitlement to the terminal benefits depends.

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On facts, it can be seen that in T.J. Radhakrishnan , the petitioner seems to have been promoted to a post that had not been sanctioned by the Government. In this case, the post the petitioner had been promoted to has been in existence. Instead of promoting the petitioner in 1997, the Corporation promoted him in 1994, on the premise that the petitioner's earlier promotion was delayed. And this was objected to by the Accountant General. So the question of the Government's deciding or determining the existence of the post or fixing terminal benefits based on the last

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W.P.(C.) No. 17678/2011 -4-

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drawn pay in the promotional post, here, will not arise.

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As seen from record, the petitioner retired only in 2012. If not in 1994, the petitioner could have been promoted in 1997. So his last drawn pay, the basis for calibrating the terminal benefits, should be only in the promotional post—Divisional Manager. Thus, the terminal benefits remain unaffected.

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Under these circumstances, the principal issue to be determined is whether the Corporation could recover the excess pay of `21,552/- from the petitioner. A coequal Bench of this Court in T.S. Radhakrishnan has held otherwise. And I am bound to follow it.

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Accordingly, I allow this writ petition. As a result, Exts.P4 and the part of Ext.P8 that concerns the petitioner stand quashed.

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Needless to observe that if the Corporation has retained any amount from the petitioner’s terminal benefits, it should pay the retained amount at the earliest, at any rate, within three months from the date of receipt of a copy of this judgment.

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DAMA SESHADRI NAIDU, JUDGE.

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W.P.(C.) No. 17678/2011 -5-

C.K.Surendranath v. Kerala Forest Development Corporation Lt

Case brief

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C.K.Surendranath v. Kerala Forest Development Corporation Lt

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