Allowed

E.v.Somasundaran v. the Kerala State Road Transport Corporation

Kerala HC10 Nov 2022WP(C)/17512/2019

Case brief

AI extract

What is this about?

High Court quashed a demand note for excess pension recovery from a retired KSRTC driver without misrepresentation. Court ordered respondents to reassess provisional service and disburse pension within 15 days following Supreme Court ratio.

What did the court decide?

Order Ext.P5 dated 29.3.2019 for recovery of Rs.69,567/- quashed. Respondents to reassess pension counting provisional service within 15 days.

E.v.Somasundaran Vs the Kerala State Road… — Pension and Retirement Benefits | Kerala HC (2022)

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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 AMIT RAWAL

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THURSDAY, THE 10^TH DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944

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WP(C) NO. 17512 OF 2019

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PETITIONER/S:

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E.V.SOMASUNDARAN AGED 57 YEARS S/O. LATE. GOVINDAN NAIR, 15/627, JANAKI MANDIR, KUNNATHURMEDU, PALAKKADU DISTRICT 678 013, RETIRED AS DRIVER, KSRTC DEPOT, PALAKAD.

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BY ADVS. JOHN JOSEPH(ROY) SRI.TITUS JOSEPH

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RESPONDENT/S:

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1 THE KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN, THIRUVANANTHAPURAM 695 039, REPRESENTED BY THE CHAIRMAN AND MANAGING DIRECTOR.

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2 THE CHIARMAN AND MANAGING DIRECTOR, THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM 695 039.

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3 THE DISTRICT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION,N, PALAKKAD 688 001.

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BY ADV SHRI.T.P SAJAN, SC, KERALA STATE ROAD TRANSPORT CORPORATION - KSRTC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 17512 OF 2019

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JUDGMENT

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Petitioner had on 30.5.2018 retired as driver from the service of the respondents, KSRTC. On 29.9.1998 was appointed as empanelled driver as per the appointment letter. However in the year 2011, his services was interrupted owing to cardiac attack. Thereafter he was allowed to continue in service from 5.1.2012.

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Learned counsel submitted that the name of the petitioner vide order 22.12.2011, for regularization, was recommended but it was declined, though had rendered more than 10 years of service in the Corporation. The aforementioned action of the respondent as per averments was not in accordance with the dictum laid down by this Court in counting the service rendered by the petitioner before the regularization ie., from 1998 and had approached this Court.

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In support of the aforementioned contentions, learned counsel relied upon the judgment of the Hon'ble Supreme Court in State of Punjab v. Rafiq Masih (White Washer) 2015 (1) KLT 429 (SC) wherein it has been held

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WP(C) NO. 17512 OF 2019

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that as and when any demand is raised for payment of excess amount, at the time of the disbursement of the retirement benefits without any misrepresentation on behalf of the class IV employee, the same cannot be recovered. It was further contended that vide Ext.P5, respondents raised the demand for recovering an amount of Rs.69,567/- as Excess Payment which included the benefits, emolument s pertaining to the previous period of the date of the regularization on 2014.

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The learned counsel for the petitioner further contended that the pendency of the SLP as referred to in the order has already been disposed of and in the order dated 2.3.2022 in Civil Appeal No.3161-3165/2019, the question was with regard to the persons recruited through employment exchange and who had been enjoying the identical wages at par with the regular employees, whether their period for regularization would be reckoned for the purpose of pension or not. The order was in affirmative. In other words such persons have been held to be entitled for pension from the date of empanelment and not from the date of regularization.

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On the other hand, learned counsel for the KSEB

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WP(C) NO. 17512 OF 2019

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submitted that the petitioner for that purpose is required to make an application for consideration of the assessment of provisional pension from the date he had become empanelled, as entire arrears have to be calculated and the service book is also to be seen for that purpose, but do not deny the ratio decidendi culled out in the judgment in State of Punjab v. Rafiq Masih (Supra).

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I have heard the learned counsel for the parties and appraised the paper book. The relevant portion of the Order Ext.P5 reads as under:

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As per the above reference, (C.O Memo no.PLA4-004892/18) an amount of Rs.69567/- is due from Sri.E.V Somasundaran, driver (RTD on 31.5.2018) as item E.P.R and hence it is informed you that we will be able to consider the issue of your Exgratia pension only after remitting the above amount before Palakkad Unit and submit the receipt.

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It is a matter of record that the petitioner was

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empanelled as a driver in 1998 and vide Ext.P3 dated 2.7.2014, his services were regularized in 2014. After having rendered service for 20 years, petitioner on attaining 56 years of age retired, and paid the retirement benefits. Later on the respondent vide Ext.P5 dated 29.3.2019 raised the demand of

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WP(C) NO. 17512 OF 2019

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recovery of an amount of Rs.69,567/- on account of the fact that it was paid excessively. It is not a case of the petitioner that he, at any point of time misrepresented for the purpose of calculation of the arrears. Once there was no representation then the ratio decidendi culled out in the judgment in paragraph 12, extracted herein below, the excess recovery cannot be made.

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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. 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 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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We are informed by the learned counsel representing the appellant- State of Punjab, that all the cases in this bunch of

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WP(C) NO. 17512 OF 2019

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appeals, would undisputedly fall within the first four categories delineated here in above. In the appeals referred to above, therefore, the impugned orders passed by the High Court of Punjab and Haryana (quashing the order of recovery), shall be deemed to have been upheld, for the reasons recorded above.

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Accordingly, the order Ext.P5 dated 29.3.2019 is quashed. Writ petition qua the aforementioned relief stands allowed. As regards the other prayer, ie., counting of the provisional service rendered prior to the regularization, I am of the view that since the controversy with regard to counting and non counting has already been set at rest vide order dated 2.3.2022 in Civil Appeal referred to above. The petitioner in case makes such representation within a period of 15 (fifteen) days from the date of receipt of a certified copy of this judgment, the respondents would take a call in counting the provisional service and assess the pension as expeditiously as possible and thereafter disburse the same to the petitioner in terms of the order of the Hon'ble Supreme Court.

Sd/-

sab

AMIT RAWAL JUDGE

WP(C) NO. 17512 OF 2019

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APPENDIX OF WP(C) 17512/2019

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PETITIONER EXHIBITS

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Exhibit P 5	True copy of the memorandum dated 29-03- 2019 under number BD-1-263/2019/PLKD issued by the third respondent
EXHIBIT P2	TRUE COPY OF THE ORDER DATED 14.3.2014 REGULARISING THE SERVICE OF THE PETITIONER.
EXHIBIT P3	TRUE COPY OF THE JUDGMENT IN WPC NO. 14373 OF 2014 DATED 2.7.2014 ISSUED BY THIS HONBLE COURT.
EXHIBIT P1	TRUE COPY OF THE APPOINTMENT ORDER DATED 29.9.1998 ISSUED TO THE PETITIONER.
EXHIBIT P5	TRUE COPY OF THE MEMORANDUM DATED 29.3.2019 UNDER NO. BD-1-263/2019/PLKD ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P6	TRUE COPY OF THE REPLY DATED 12.4.2019 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT.
EXHIBIT P4	TRUE COPY OF THE NOTICE DATED 10.12.2018 ISSUED TO THE PETITIONER

E.v.Somasundaran v. the Kerala State Road Transport Corporation

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E.v.Somasundaran v. the Kerala State Road Transport Corporation

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