Allowed

Joju T John v. Kerala State Library Council

Kerala HC4 Apr 2022WP(C)/22936/2020

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ petition filed by a retired employee challenging the state's re-fixation of his DCRG and salary with consequent recovery from his pension. The court held that recovery is impermissible where excess payment continued for over 13 years before recovery was ordered, setting aside the contested orders and directing the respondents to disburse the balance gratuity

What did the court decide?

Exts.P5 and P6 set aside; respondents directed to disburse balance gratuity and monthly pension within three months.

Joju T John Vs Kerala State Library Council — 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 V.G.ARUN

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MONDAY, THE 4^TH DAY OF APRIL 2022 / 14TH CHAITHRA, 1944 WP(C) NO. 22936 OF 2020

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PETITIONER/S:

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JOJU T JOHN AGED 57 YEARS S/O.T.J.JOHN,T.C.27/61,MRA 64, KIZHAKATHIL LANE,VANCHIYOOR.P.O, TRIVANDRUM695035. BY ADV CHITRA JOHNSON

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RESPONDENT/S:

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1 KERALA STATE LIBRARY COUNCIL REPRESENTED BY ITS SECRETARY, ETN 43,TC 24/1962,K.ANIRUDHAN ROAD, VAZHUTHACAUD,THIRUVANANTHAPURAM-695014.

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2 KERALA STATE AUDIT DEPARTMENT, REPRESENTED BY ITS DIRECTOR, VIKAS BHAVAN,THIRUVANANTHAPURAM-695003.

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3 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001. BY ADVS. SMT.BINDUMOL JOSEPH SRI.B.S.SYAMANTHAK A.ARUNKUMAR

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OTHER PRESENT:

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SR.GP.PREMCHAND R. NAIR

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.22936 of 2020

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JUDGMENT

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Dated this the 04^th day of April, 2022

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The petitioner had entered the service of Kerala State Library Council as Publication Assistant in the year 1989 and retired as its Administrative Officer on 31.07.2019. Prior to the petitioner's retirement, his pension, DCRG, computation of pension etc were calculated by the first respondent and forwarded to the Kerala State Audit Department under Ext.P1. As per Ext.P1, the DCRG was computed at Rs.12,96,000/and monthly pension fixed at Rs.35,423/-. After the petitioner retired, the State Audit Department noted certain irregularities with respect to the petitioner was promoted without obtaining sanction from the Government. Thereupon, the first respondent requested the

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W.P.(C) No.22936 of 2020

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Government to ratify the petitioner's promotion to the posts of Extension Officer and Assistant Development Officer. Accordingly, Ext.P3 order dated 18.04.2020 was issued, regularising the petitioner's promotion. Thereafter, the State Audit Department approved the fixation of salary of the petitioner, pursuant to which the first respondent re-fixed the pay scale under Ext.R1(a). Thereafter, the second respondent issued Ext.P4 order dated 10.06.2020 refixing the petitioner's DCRG at Rs.12,36,600/- and monthly pension at Rs.33,773/-. Consequently, the first respondent issued Ext.P5 re-fixing the petitioner's salary with effect from 01.07.2006 onwards. A perusal of Ext.P6 shows that the

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salary of the petitioner as on 01.07.2006 was fixed at Rs.12,590/-, whereas the salary actually payable, according to the second respondent, was

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W.P.(C) No.22936 of 2020

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Rs.12,250/- and the anomaly continued up to the petitioner's retirement. After making the deduction, petitioner was issued with Ext.P6 order dated 15.09.2020 adjusting an amount of Rs.5,61,028/- from his DCRG. Aggrieved, this writ petition is filed, seeking to quash Exts.P5 and P6 and to declare the recovery proposed by Ext.P6 as illegal. The further prayer is for the issue of a writ of mandamus directing the respondents to disburse the withheld pensionary benefits.

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2. Learned Counsel for the petitioner contended that, insofar as the petitioner's promotion was ratified by the Government vide Ext.P3, the proposal to recover the alleged difference in pay, consequent to his promotion, is patently illegal. It is pointed out that as per Ext.P7, the petitioner's pay scale was

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W.P.(C) No.22936 of 2020

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approved even as on 14.07.2015. Learned Counsel contends that, as the petitioner is not responsible for the alleged anomaly in fixation of pay, therefore cannot be any recovery from his salary after retirement. It is contended that the long delay in fixing the salary, by itself, is sufficient ground for setting aside Exts.P5 and P6. Reliance is placed on the decision of the

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Apex Court in State of Punjab and others v. Rafiq Masih (White Washer) [(2015) 4 SCC 334] and that of the Division Bench of this Court in State of Kerala and others v.Sreedevi T.R [ILR 2019(4) Kerala 791], to contend that the recovery from a retired employee is impermissible in law.

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3. Learned Standing Counsel for the first respondent points out that by Ext.P5, only the promotion granted to the petitioner was ratified and the anomaly in pay was directed to be

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W.P.(C) No.22936 of 2020

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refixed. In term of the direction issued by the second respondent, the petitioner's salary was refixed by Ext.P6. As the petitioner is not challenging the re-fixation of his salary as incorrect, he cannot wriggle out of the liability to refund the excess amount received by him, which if allowed would result in illegal enrichment.

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4. The undisputed facts are that the

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petitioner retired from the service of the first respondent on 31.07.2019 and no proceedings, either for refixing the petitioner's pay or for recovery of the alleged excess amount, was initiated while he was in service. The alleged anomaly had occurred on 01.07.2006 and even as on 14.07.2015, the date on which Ext.P7 was issued, the Local Fund Audit Department had not detected the anomaly. The petitioner was not issued with

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W.P.(C) No.22936 of 2020

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notice or afforded opportunity of hearing before refixing his salary and effecting consequential recovery/adjustment from his retirement benefits. The limited scope for recovery after retirement,

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based on alleged excess payment of salary, is well settled by the decision in Rafiq Masih's

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case (supra). The following situations are postulated in the said decision;

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“(i) Recovery from the employees belonging to

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Class III and Class IV service (or Group C and Group D service).

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

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(iii) Recovery from the 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

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the equitable balance of the employer's right to recover.”

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5 . As rightly contended by the learned

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Counsel for the petitioner, even though the petitioner does not belong to class III or class

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IV service, the other stipulations in the judgment is squarely applicable to the case at hand. In Sreedevi T.R , the Division Bench, after

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taking into account Rafiq Masih and other precedents had held as follows;

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“Recovery is impermissible where excess payment has been made for a period exceeding five years, prior to the order for recovery.”

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Herein, excess payment had continued for a period

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of more than 13 years. For the aforementioned reasons, I find the challenge against Exts.P5 and P6 to be well founded.

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In the result, the writ petition is allowed. Exts.P5 and P6 are set aside. Respondents are directed to disburse the balance amount of

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W.P.(C) No.22936 of 2020

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gratuity due to the petitioner as calculated in Ext.P1, and to pay the monthly pension also accordingly. The arrears of the monthly pension and balance amount of DCRG calculated in the manner stated above, shall be disbursed within an outer limits of three months from the date of receipt of a copy of the judgment.

Sd/-

V.G.ARUN JUDGE

Scl/

W.P.(C) No.22936 of 2020

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APPENDIX OF WP(C) 22936/2020

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE PENSION CALCULATION MADE BY THE 1ST RESPONDENT DATED 11.04.2019 EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS NO.K.S.A.T.V.M/796/2/19 DATED 27.08.2019 EXHIBIT P3 TRUE COPY OF THE G.O. (RT)NO.526/202/HEDN DATED 18.04.2020 EXHIBIT P4 TRUE COPY OF THE VERIFICATION REPORT DATED 10.06.2020 EXHIBIT P5 TRUE COPY OF THE ORDER NO.D2-1220/2020 DATED 24.08.2020 EXHIBIT P6 TRUE COPY OF THE ORDER NO.1318/2020 DATED 15.09.2020 EXHIBIT P7 TRUE COPY OF THE ORDER NO.L.F.T.D.3(B)/75/2015 DATED 14.07.2015.

Joju T John v. Kerala State Library Council

Case brief

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Joju T John v. Kerala State Library Council

Case brief

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