Alice Margret v. State of Kerala and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945 ``` ## **`WP(C) NO. 11896 OF 2019`** ## **`PETITIONER/S:`** ``` ALICE MARGRET AGED 56 YEARS W/O.JOSE K.V., KALLUMADATHIL HOUSE, NJARAKKAL.P.O., PERUMPILLY, CHURCH ROAD, ERNAKULAM-682505. BY ADVS. T.T.MUHAMOOD SRI.A.RENJIT SRI.V.E.ABDUL GAFOOR SRI.A.MOHAMMED SAVAD SRI.C.Y.VINOD KUMAR ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695001. 2THE DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DPI, JAGATHY, THIRUVANANTHAPURAM-695001. 3THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DDE, ERNAKULAM, PIN-682001. 4THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DEO, ERNAKULAM, PIN-682001. 5THE HEADMISTRESS, ST.TERESAS CGHSS, ERNAKULAM-682001. 6THE MANAGER, ST.TERESAS CGHSS, ERNAKULAM-682001. BY ADV GOVERNMENT PLEADER ``` ## **`OTHER PRESENT:`** ``` SMT.SURYA BINOY, SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.11896 OF 2019 ``` 2 ## **P.V.KUNHIKRISHNAN, J.** **------------------------------** **W.P.(C).No. 11896 of 2019** ## **---------------------------------------------Dated this the 22[nd] day of March, 2023** ## **J U D G M E N T** ## The above writ petition is filed with the following ## prayers: _i) A writ of certiorari or any other appropriate writ, order or direction, quashing Ext:P1 and P2._ _ii) A writ of mandamus or any other appropriate writ, order or direction, directing the respondents not to recover any amount from the petitioner towards alleged liability in pursuance to Ext:P1 and P2._ _iii) A writ of mandamus or any other appropriate writ, order or direction, directing the respondents not to recover any amount from the petitioner towards alleged liability in pursuance to Ext:P1 and P2._ _iv) A writ of mandamus or any other appropriate writ, order or direction, directing the respondents to grant all pensionery benefits including monthly pension DCRG, commuted value of pension to the petitioner at the earliest_ _And_ _such other writ, order or direction as this Hon'ble Court may deem fit in the facts and circumstances of the case.(SIC)_ 2. The petitioner retired from service on 31.03.2019 as High School Assistant (Social Science) in St.Teresa's Convent Girls' Higher Secondary School, ``` WP(C) NO.11896 OF 2019 ``` 3 Ernakulam. According to petitioner, she retired from service on superannuation after 29 years of service. After the submission of the pension proposal, certain objections were raised stating that while fixing the pay in the revised scale of pay as per 2009 pay revision, there was mistake in taking the basic pay in the pre-revised scale. It is the case of the petitioner that she has not contributed for the fixation which was made in respect of pay revision 2009. Revision of pay and recovery of the amount after long lapse of time causes undue hardship to the petitioner is the submission. It is also an admitted fact that as per Ext.P3, the petitioner's pay is fixed based on the admissible pay. Now, the grievance of the petitioner is that an amount of Rs.1,38,135/- was not disbursed alleging excess salary paid from 01.10.2009 to 31.12.2018. Hence, this writ petition. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. ``` WP(C) NO.11896 OF 2019 ``` 4 4. The learned counsel for the petitioner submitted that in the light of the judgment of the Apex Court in _**State of Punjab and others v. Rafiq Masih (Whitewasher)**_ [2014 KHC 4818], the recovery is unsustainable. The Government Pleader on the other hand submitted that, the decision in _**High Court of Punjab & Hariyana Vs. Jagdev Singh**_ [2016 14 SCC 267] further clarified the decision in _**Whitewasher's**_ case (supra). The Government Pleader also took me through Chapter XXVI Rule 1A KER. The Government Pleader also submitted that the pension papers of the petitioner were only submitted on 17.09.2018. The counsel for the petitioner submitted that the judgment _**Jagdev Singh's**_ case (supra) is already further clarified by this Court in judgement State of Kerala Vs. Vinod Kumar 2020 (4) KLT 230. 5. This Court considered the contentions of the petitioner and the learned Government Pleader. In ``` WP(C) NO.11896 OF 2019 ``` 5 Whitewasher's case (supra), the Apex Court considered this issue in detail. It will be better to extract paragraph 12 of the Apex Court judgment in _**Whitewasher's case**_ (supra). 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 the employers, would be impermissible in law:** (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). **(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.** **(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.** (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. (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.** (underline supplied) ## 6. The Apex Court clearly stated that the recovery ## of excess payment from retired employees or the ``` WP(C) NO.11896 OF 2019 ``` 6 employees who are due to retire within one year of the recovery is not permissable. Similarly, recovery from employees when the excess payment has been made for a period in excess of 5 years before the order of recovery is also not possible. It is further stated that in any other case where the court arrives at the conclusion that, the recovery is made from the employee would be iniquitous or harsh or arbitrary to such an extent, the recovery is not permissible. It is true that each case has to be considered on its merit. 7. Here is a case where the petitioner completed about 29 years of service. There is no fault on the part of the petitioner in fixing the pay. At the eve of her retirement, it is found that there is some mistake and the mistake is already rectified as per Ext.P3. In such situation, according to me, the principle laid down in the _**Whitewasher's**_ case (supra) is squarely applicable. Therefore, I am of the opinion that the recovery from the petitioner's DCRG and salary arrears is illegal. The ``` WP(C) NO.11896 OF 2019 ``` 7 upshot of the above discussion is that the petitioner is entitled the relief. Therefore, this writ petition is allowed in the following manner. 1. The respondent Nos. 1 to 4 are directed to disburse the withheld amount of Rs.1,38,135/[1,13,135 (excess pay drawn) + 25,000 (salary arrears)] to the petitioner as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. 2. The petitioner will produce a certified copy of this judgment along with the copy of this writ petition before respondent Nos. 1 to 4 for compliance. _Sd/-_ **P.V.KUNHIKRISHNAN JUDGE** SM ``` WP(C) NO.11896 OF 2019 ``` 8 ## **`APPENDIX OF WP(C) 11896/2019`** ``` PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF LETTER NO.D1/22186/2018 DATED 1.12.2018 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P2TRUE COPY OF LR.NO.B2/9683/2018 DATED 27.12.2018 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P3TRUE COPY OF STATEMENT OF FIXATION OF PAY ISSUED BY THE RESPONDENTS. ``` ## `RESPONDENT EXHIBITS NIL` ``` //TRUE COPY// PA TO JUDGE ```