Annie Maria and others v. The Managing Director, Kerala Agro Machinery Corporation (Kamco) and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2015-12-17
Court Decision / Holding: Writ petition disposed of. No Costs.
Final Disposition: Writ petition disposed of; no costs.

Parties to the Case

Appellants / Petitioners

Annie Maria
K.P. Joseph
M. Majeedkutty
P.K. Sugathan

Respondents

The Managing Director Kerala Agro Machinery Corporation [Kamco], Athani-683 585, Ernakulam District
The Board of Directors Kerala Agro Machinery Corporation [Kamco] Athani-683 585, Ernakulam District represented by Managing Director
The Secretary to Government Agricultural (PU) Department Government Secretariat Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• Sri. K.A. Jal eel
• Sri. C. Anilkumar (Kalesseril)

Counsels for Respondents

• Adv. E.K. Nandakumar
• Government Pleader SMT. Smitha Vinod

Case Synopsis & Summary

The petition concerns pay anomalies in Kamco where a rectification had stepped up the petitioners’ pay to match 'juniors' on the basis of a Representation. The stepping up was premised on Rule 28A of Part-I KSR and a guiding Ruling No.1(a). Subsequently, the Accountant General flagged that such step-up could be granted only where the junior and senior officers belong to the same cadre and the posts are identical; as a result, Kamco cancelled the rectification by issuing Exts.P1 to P4 and directed recovery of excess amounts drawn. The petitioners challenged these cancellations, arguing that interim orders and the Supreme Court’s decision in State of Punjab v. Rafiq Masih (2015) would limit or bar recovery in certain circumstances. The respondents maintained the step-up was erroneously granted and that the post-cadre condition had not been satisfied, making cancellation proper. The court observed that Rafiq Masih’s five situations do not apply here since the petitioners were not class III/IV employees, the excess pay was for about two years, and retirement occurred long after the writ petition. Citing Abhimanyu Ram v. State of UP, it held that an interim-order benefit cannot endure if the writ petition is ultimately rejected. The court disposed of the writ petition with no costs, effectively approving the government’s action to recover the excess pay where appropriate and noting the interim relief’s limits.

Provisions of Law Cited

Rule 28A of Part-I KSRRuling No.1(a)

Legal Doctrines & Maxims

A benefit derived from an interim order cannot enure to the benefit of a writ petitioner if eventually the writ petition itself is rejected.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that stepping up of pay was granted under Rule 28A of Part-I KSR in reliance on the representation that the petitioners drew lesser pay than their juniors. They argued that the rectification should not be cancelled without due notice and that the interim relief and the decision in Rafiq Masih should be applied to prevent unjust recovery after retirement.

Contentions of Respondents

Kamco argued that stepping up was legally untenable because the juniors were not in the same cadre and the cadre-post equation did not exist; hence the rectification was a mistake that could be cancelled. They asserted that recovery of excess pay was within the employer’s right and that interim orders do not bar recovery where warranted by statutory rules.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
State of Punjab v. Rafiq Masih	2015 (1) KLT 429 (SC)	Distinguished	The court considered the five situations from Rafiq Masih but held none applied to the petitioners, distinguishing this case from the Punjab decision.
Abhimanyu Ram v. State of UP	(2008) 17 SCC 73	Positive	Used as supportive authority to hold that an interim order cannot confer enduring relief if the writ petition ultimately fails.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 17TH DAY OF DECEMBER 2015/26TH AGRAHAYANA, 1937** ## **OP.No. 19706 of 2001 (U)** ## **-------------------------** ## **PETITIONERS:** ## **--------------------** **1. ANNIE MARIA, ASSISTANT KERALA AGRO MACHINERY CORPORATION [KAMCO] ATHANI-683 585, ERNAKULAM DISTRICT.** **2. K.P. JOSEPH, ASSISTANT KERALA AGRO MACHINERY CORPORATION [KAMCO] ATHANI-683 585, ERNAKULAM DISTRICT.** **3. M. MAJEEDKUTTY, PAINTER KERALA AGRO MACHINERY CORPORATION [KAMCO] ATHANI-683 585, ERNAKULAM DISTRICT.** **4. P.K. SUGATHAN, PAINTER KERALA AGRO MACHINERY CORPORATION [KAMCO] ATHANI-683 585, ERNAKULAM DISTRICT.** ## **BY ADVS.SRI.K.A.JALEEL SRI.C.ANILKUMAR (KALLESSERIL)** ## **RESPONDENTS:** **----------------------** **1. THE MANAGING DIRECTOR KERALA AGRO MACHINERY CORPORATION [KAMCO] ATHANI-683 585, ERNAKULAM DISTRICT.** **2. THE BOARD OF DIRECTORS KERALA AGRO MACHINERY CORPORATION [KAMCO] ATHANI-683 585, ERNAKULAM DISTRICT REPRESENTED BY MANAGING DIRECTOR.** **3. THE SECRETARY TO GOVERNMENT AGRICULTURAL (PU) DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM.** ## **BY ADV. SRI.E.K.NANDAKUMAR BY GOVERNMENT PLEADER SMT. SMITHA VINOD** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17-12-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP.No. 19706 of 2001 (U)** ## **APPENDIX** ## **PETITIONERS' EXHIBITS :-** |**PETITIONERS' EXHIBITS :-**|**PETITIONERS' EXHIBITS :-**|**PETITIONERS' EXHIBITS :-**| |---|---|---| |**-----------------------------------**||| |**EXT.P1**|**-**|**COPY OF ORDER ISSUED TO THE PETITIONER NO.1 BY THE**| |||**MANAGER PERSONNEL KAMCO DATED 22.06.2001.**| |**EXT.P2**|**-**|**COPY OF ORDER ISSUED TO THE 2ND PETITIONER BY THE**| |||**MANAGER PERSONNEL KAMCO DATED 22.06.2001.**| |**EXT.P3**|**-**|**COPY OF ORDER ISSUED TO THE 3RD PETITIONER BY THE**| |||**MANAGER PERSONNEL KAMCO DATED 22.06.2001.**| |**EXT.P4**|**-**|**COPY OF ORDER ISSUED TO THE 4TH PETITIONER BY THE**| |||**MANAGER PERSONNEL KAMCO DATED 22.06.2001.**| ## **RESPONDENTS' EXHIBITS:- NIL** **---------------------------------------** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **sp** ## **K. VINOD CHANDRAN, J.** ## **-------------------------O.P. No.19706 of 2001-U** **-------------------------Dated this the 17[th] day of December, 2015.** ## **JUDGMENT** The petitioners were workmen in the respondent Corporation. The issue raised in the O.P. is with respect to a pay anomaly, which was rectified by the respondent, but however, later withdrawn. The rectification was made on the basis of a representation made by the petitioners on the ground that they were drawing lesser pay than their juniors. The respondents, on consideration of the representation, stepped up the pay of the petitioners to that of their juniors, pointed _O.P. No.19706 of 2001-U_ **2** out by the petitioners. 2. Later on, an objection was raised by the Accountant General, Kerala, specifically indicating that such step-up of pay could be given only to persons in the same cadre. The respondent Company hence issued Exts.P1 to P4 orders against the petitioners, reducing their pay, cancelling the rectification and also directing recovery of the excess amounts drawn on step-up. 3. The respondent Company has filed a Counter Affidavit, in which it has been specifically stated that the petitioners herein pointed out certain anomalies and relying on Rule 28A of Part-I KSR, the same was granted. Later on, being cautioned by the Accountant General, it was revealed that the alleged juniors did not belong to the same cadre as the _O.P. No.19706 of 2001-U_ **3** petitioners. It was in such circumstance, that the rectification granted was found to be a mistake and the same cancelled. 4. It is to be noticed that a stepping up of pay as per Rule 28A of Part-I KSR is regulated by Ruling No.1(a), which specifically provides that such stepping up of pay can be allowed only when the junior and senior officers belong to the same cadre and the post they occupy should be identical. In such circumstance, if the juniors, whom the petitioners alleged to have been drawing more pay, are not in the same cadre and there is no possibility of an equation of posts, then necessarily no stepping up could have been granted. A mistake thus occurred could be cancelled by the respondent Corporation. However, the fact remains that the petitioners were not issued with any notice _O.P. No.19706 of 2001-U_ **4** before such cancellation was made. 5. The learned counsel for the petitioners contends that the petitioners are now retired and the decision of the Hon'ble Supreme Court in **State of Punjab v. Rafiq Masih [2015 (1) KLT 429 (SC)]** would squarely apply, in so far as the recovery is considered. This Court is unable to countenance such contention, since admittedly the retirement of the petitioners were some time in the year 2010, long after the writ petition was filed. The rectification of alleged anomaly was on 21.04.1999 and the same was sought to be rectified in 2001. The petitioners, at the time of filing of the writ petition, obtained a stay of recovery in CMP No.31906 of 2001. Subsequently in CMP No.35875 of 2001, the reduction in pay, by reason of cancellation of step-up was also stayed. Hence, _O.P. No.19706 of 2001-U_ **5** the petitioners have been drawing higher pay all through their service till their retirement, merely because of the interim order in the writ petition and they cannot now submit that the writ petition is rendered infructuous by reason of the petitioners having retired 6. **Rafiq Masih (supra)** took into consideration five situations, which are as under: _(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_ _O.P. No.19706 of 2001-U_ **6** _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.”_ 7. None of these conditions apply. The petitioners do not belong to Class III or IV and the wrong payment was made only for about two years, and there could be no iniquity harshness or arbitrariness found. The claim of the petitioners also was not on account of additional duties, but a mere step-up. The retirement was long after the cancellation and cannot at all effect the recovery of excess pay, which they enjoyed by virtue only of the interim order. Apposite would be reference to **(2008) 17 SCC 73, Abhimanyoo Ram Vs State Of** _O.P. No.19706 of 2001-U_ **7** **U.P.** A benefit derived of an interim order cannot ennure to the benefit of a writ petitioner if eventually the writ petition itself is rejected. 8. It is to be noticed herein, that within two years of the erroneous rectification made (21-04-1999), the respondent attempted to correct it by canceling it (21-03-2001). The petitioners herein challenged the same before this Court and obtained an interim order of stay of recovery and one of stay of reduction of pay. They took the risk of drawing the higher pay, by specifically asking for the same, which can only be subject to the result of the writ petition. 9. In such circumstance, though no recovery could be made for the amounts paid prior to Exts.P1 to P4, since the petitioners were not _O.P. No.19706 of 2001-U_ **8** at fault; the same would not apply for the future period. The petitioners could be issued with notice and after hearing them, looking at the provisions of Rule 28A of Part-I KSR, the Company could also take appropriate action for refund of the excess pay drawn, when the writ petition itself was pending here, if the rectification is found to be actually erroneous. With the aforesaid observation, the writ petition would stand disposed of. No Costs. Sd/- ## **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge. sp/18/12/15