Dismissed

Chairman, State Co-Operative Union, v. L.Ragini Devi Amma

Kerala HC11 Dec 2020WA/1432/2020

Case brief

AI extract

What is this about?

This appeal challenges a single judge order granting full pension to a retired employee without recovery of excess commuted value. The High Court upheld the lower decision, finding impermissibility of recovery due to delay, and extended the compliance period.

What did the court decide?

Extends time for compliance with directions of the impugned single judge judgment for three weeks from receipt.

Chairman, State Co-Operative Union, Vs… — Pension and Retirement Benefits | Kerala HC (2020)

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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 C.T.RAVIKUMAR

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THE HONOURABLE MR. JUSTICE K.HARIPAL

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FRIDAY, THE 11TH DAY OF DECEMBER 2020 / 20TH AGRAHAYANA, 1942

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WA.No.1432 OF 2020

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AGAINST THE JUDGMENT IN WP(C) 39590/2015(W) OF HIGH COURT OF KERALA

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APPELLANT/RESPONDENT NO.3 & 4:

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1 CHAIRMAN, STATE CO-OPERATIVE UNION, KERALA, SAMSTHANA SAHAKARANA BHAVAN, OOTTUKUZHY, THIRUVANANTHAPURAM-695 001.

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2 STATE CO-OPERATIVE UNION, REPRESENTED BY SECRETARY, STATE CO-OPERATIVE UNION, KERALA, SAMSTHANA SAHAKARANA BHAVAN, OOTTUKUZHY, THIRUVANANTHAPURAM-695 001.

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BY ADV. SRI.K.B.PRADEEP

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RESPONDENTS/PETITIONER AND RESPONDENTS 1 & 2:

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1 L.RAGINI DEVI AMMA ANJALI GRAND F2 APARTMENT, MANGALASSERY LANE, KAIMANAM, PAPPANAMCODE P.O., THIRUVANANTHAPURAM-695 018.

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2 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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3 REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM-695 001.

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R1 BY ADV. SRI.B.RAGHUNATHAN R1 BY ADV. SRI.M.SALIM R1 BY ADV. SRI.V.M.JACOB G.P.- SRI.RENIL ANTO KANDAMKULATHY

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A.1432/2020

JUDGMENT

Ravikumar, J.

This appeal is directed against judgment dated 18.1.2019 in W.P. (C).No. 39590 of 2015. In fact, it is a common judgment in the said writ petition as also in W.P.(C).No.24101 of 2015. All the petitioners were employees retired from the State Co-operative Union, Kerala. They filed the writ petition on being aggrieved by the action initiated by the appellants for effecting recovery from their monthly pension as also the consequential reduction of their pension by 50% on the ground that excess amounts were drawn by them towards Commuted Value of Pension. As per the impugned judgment, the learned Single Judge, relying on the decision of the Hon'ble Apex Court in State of Punjab and others Vs Rafiq Masih (White Washer) and Others [AIR 2015 SC 696], set aside the impugned notices and as a necessary sequel, as relates W.P.(C).No.39590 of 2015, directed the appellants herein/respondents therein to disburse the pension to the first respondent herein viz., the writ petitioner within a period of three

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months from the date of receipt of copy of the judgment. Such a direction was issued taking note of the fact that for the period from August 2015 to December 2015 pension was not paid. But for the specific direction, the aforesaid judgment dated 18.1.2019 is common in both W.P.(C).Nos.24101 of 2015 and 39590 of 2015. Relying on the decision in Rafiq Masih 's case (supra), the learned Single Judge interfered with the decision to effect recovery from the petitioners and declared that the writ petitioners are entitled to receive pension without any reduction.

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The learned counsel for the appellants attempted to canvass

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the position that the learned Single Judge had wrongly relied on the decision of the Apex Court in Rafiq Masih' s case as the said decision is inapplicable to the cases in question. In otherwords, it is submitted that there was absolutely no reason to interfere with the decision to effect recovery from the writ petitioners who obtained excess amount towards Commuted Value of Pension as also with the decision to effect recovery of the amount excessively paid from the monthly

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pension and in that regard for reduction of pension by 50%. The learned counsel drew our attention to paragraph 12 of the decision in Rafiq Masih 's case to canvass the position that the case of the first respondent in the appeal did not fall within the four conditions referred in the aforesaid decision. Per contra, the learned counsel for the first respondent in the appeal contended that the learned Single Judge had rightly relied on the said decision and interfered with the impugned notices to effect recovery and also the decision to reduce the pension.

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In the context of the rival contentions, it is only apposite to extract paragraph 12 of the decision in Rafiq Masih 's case. It runs as follows:-

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12.It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by

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the employers, would be impermissible in law:

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(i)Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

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(ii)Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

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(iii)Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

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(iv)Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

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(v)In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.

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The learned counsel for the appellant contended that the case

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of the writ petitioner/first respondent herein would fall under category

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(iii) mentioned in paragraph 12 of the aforesaid decision. We find it

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difficult to accept the contention that the case of the writ

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petitioner/first respondent herein falls thereunder. That apart, a bare perusal of the decision in Rafiq Masih' s case would reveal that the Apex Court did not hold that recovery is possible from all employees serving or retired, in case they did not fall within any of the four categories mentioned therein. This is evident from the very opening sentence in the said decision. At the risk of repetition, we will extract the said sentence. It says:-

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“It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement.”

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In the case on hand, excessive payment towards Commuted

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Value of Pension was given to the writ petitioner/first respondent at the time of her retirement viz., 30.9.2008. Steps to effect recovery was made admittedly only after 5 years. Needless to say that the decision to reduce the pension to 50% was also taken thereafter for the purpose of recovering the allegedly drawn excessive Commuted Value of Pension. The first respondent retired from the post of Accounts

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Officer. We have carefully gone through the counter affidavit filed by the appellants in their status as respondents in the writ petition as also the pleadings in the writ appeal. Taking note of the fact that she retired from service as early as on 30.9.2008; that to effect recovery the allegedly drawn excess commuted value of pension, reduction of pension was effected only after 5 years from the date of retirement as also the decision in Rafiq Masih' s case, we are of the view that the learned Single Judge had imbibed the spirit of the dictum laid down therein and rightly found that the writ petitioner/first respondent herein is also entitled to get the benefit available under the dictum laid down in Rafiq Masih 's case. We do not find any illegality or perversity in the impugned judgment warranting an appellate interference. Consequently, the appeal is dismissed. When we are about to part with the judgment, the learned counsel for the appellants submitted that a time limit of three months from the date of receipt of copy of the judgment dated 18.1.2019 in W.P.(C).No.39590 of 2015 was fixed by the learned Single Judge as per the impugned judgment

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and the time limit stipulated had expired and therefore, time for compliance with the directions may be granted. We heard the learned counsel for the first respondent also on the issue. Though the same was resisted by the learned counsel, we are of the view that in the interest of justice, three weeks from the date of receipt of copy of this judgment can be granted for complying with the direction in judgment in W.P.(C).No.39590 of 2015.

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With the above modification, the appeal stands dismissed.

Sd/-

C.T.RAVIKUMAR

JUDGE

Sd/-

K.HARIPAL