Balakrishnan V.P. v. State of Kerala & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 24[TH] DAY OF AUGUST 2021 / 2ND BHADRA, 1943** **OP(KAT) NO. 208 OF 2021** **AGAINST THE ORDER DATED 13.02.2020 IN OA NO.630/2017 OF KERALA** **ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS IN O.A:** **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **3 THE DIRECTOR OF PRINTING, GOVERNMENT CENTRAL PRESS, THIRUVANANTHAPURAM-695001.** **SRI.B.UNNIKRISHNA KAIMAL, SR.GOVT.PLEADER** ## **RESPONDENT/APPLICANT IN THE O.A:** **BALAKRISHNAN V.P.,** **AGED 57 YEARS, S/O. PACHUKUTTY, ASSISTANT FOREMAN (MACHINE), GOVERNMENT PRESS, SHORNUR, PIN-695122, RESIDING AT S.18, SIVAJI NAGAR, MANALI, PALAKKAD-678001.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 24.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P(KAT) No.208 of 2021 2 ## **ALEXANDER THOMAS & A.BADHARUDEEN, JJ.** ## **=========================================** ## **O.P(KAT) No.208 of 2021** - [ _arising out of the impugned final order dated 13.02.2020 in O.A No.630/2017 on the file of the KAT, Tvm Bench_ ] **=========================================** Dated this the 24[th] day of August, 2021 ## **JUDGMENT** ## **Alexander Thomas, J.** Aggrieved by the impugned Annexure-A3 order dated 26.11.2015 issued by R3 in the O.A (The Director of Printing) and the impugned Annexure-A6 appellate order dated 21.12.2016 issued by R1 in the O.A (State Government) in the matter of recovery from his pay consequent to audit objections regarding the mistaken acceptance of option pursuant to the pay revision made in the year 2004, the applicant had approached the Tribunal by filing the instant Ext.P-1 original application, O.A No.630/2017 with the following prayers [ _see page Nos.23 & 24 of the paper book of the O.P_ ] : - _“i. The condition in para 4(V) of the GO dated 5.1.2012 (Annexure A4) may be struck down as it is, discriminative and violate the constitutional protection for equality before law guaranteed in Article 14 of the Constitution_ - _ii. Direct the 1[st] Respondent to allow re-option to the applicant in_ O.P(KAT) No.208 of 2021 3 _respect of 2004 and 2009 Pay Revisions as his case falls with in the purview of para 3(iii) of Annexure A4 but for the time limit specified therein._ - _iii. To quash the order of recovery of the excess pay due to erroneous fixation ordered in Annexure A1 and Annexure A7, in view of the decision of Apex court mentioned above._ - _iv. Any other orders or directions as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.”_ 2. The Tribunal after hearing both sides has rendered the impugned Ext.P-6 final order dated 13.02.2020 in O.A No.630/2017, wherein it has been held that in the facts and circumstances of the case, since the audit objections were raised in terms of Annexure-A1 almost nine years after the acceptance of the applicant's option for pay fixation consequent to the 2004 pay revision, he is entitled to seek re-option in terms of para 3(iii) of Annexure-A5 G.O (P) No.8/2012/Fin. dated 05.01.2012 and that hence, the impugned orders at Annexures-A3 & A6 have been quashed by the Tribunal. The Tribunal has given liberty to the respondents in the O.A to consider the re-option that may be submitted by the applicant in respect of the pay fixation for the 2004 pay revision in terms of Annexure-A5 G.O, etc. But noting the fact that the applicant has already remitted the entire amount of Rs.1,10,369/as alleged excess pay consequence to the impugned recovery orders, the Tribunal has ordered that R1 in the O.A will return the amount remitted O.P(KAT) No.208 of 2021 4 by the applicant as per Annexure-A8 Challan receipt after deducting any excess amount due from him as per the revised pay fixation consequent to the re-option that is to be considered in terms of para.3(iii) of Annexure-A5 G.O. It is this final verdict of the Tribunal at Ext.P-6 that is under challenge in this O.P. 3. Heard Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for the petitioners in O.P/respondents in the O.A. In the nature of the orders proposed to be passed by this Court in this O.P, notice to the contesting respondent in the O.P/sole applicant in the O.A will stand dispensed with. 4. A brief reference to the facts in this case would be pertinent. As indicated hereinabove, the applicant is essentially aggrieved by the cancellation of the fixation of pay and the directions to recover the amounts already paid to him consequent to the audit objection at Annexure-A1. The applicant has already retired from service on 30.04.2018 while holding the post Assistant Foreman (Machine) in the Printing and Stationary Department. A reading of Annexure-A1(2) audit objections dated 12.10.2015 would make it clear that the original applicant had initially entered service as Lorry Cleaner w.e.f 19.04.1990 O.P(KAT) No.208 of 2021 5 and thereafter, he was appointed as Printer Grade-II w.e.f 22.10.1991 and was later promoted as Printer Grade-I w.e.f 28.02.1998. He had opted for revision of pay as per G.O(P) No.145/2006/Fin. dated 01.04.2006, as ordered by the State Government. The re-option was duly accepted by the departmental authorities concerned. Later, the applicant has also been promoted to the next post and subsequently he has also retired from service on 30.04.2018. About nine long years after the acceptance of the option for the 2004 pay revision, the Accountant General has raised audit objections in terms of Annexure-A1(2) sometime in 2015 and the audit objection was conveyed to the applicant by the departmental authorities as per Annexure-A1(1) letter dated 12.10.2015. The audit objection was to the effect that the option of the petitioner for pay fixation in terms of 2004 pay revision was allowed by the departmental authorities on the premise that he had completed 16 years service on 19.04.2006 and that thus he could opt to come over to the revised scheme since he had completed 16 years service on that day. The applicant had also then claimed that he was entitled for four increments as weightage on 19.04.2006. His option was so accepted and arrears consequent to the O.P(KAT) No.208 of 2021 6 pay fixation were also released to him. The audit objections raised in terms of Annexure-A1 was to the effect that the departmental authorities have not noted that the applicant had taken Leave Without Allowance for a period of 41 days and that the said 41 days period could not have been counted for reckoning as to whether he has completed 16 years service to come over to the revised scale. That, since he had taken 41 days LWA, the acceptance of the option on the premise that he had completed 16 years of service on 19.04.2006 was wrong and that in view of that, he was entitled not for four weightages but only for three weightages. That the said mistake has crept into his pay fixation throughout and that the same is liable to be rectified, etc. 5. The applicant had thereupon filed Annexure-A2 representation dated 08.10.2015 before the departmental authorities seeking for re-option in terms of Annexure-A5 G.O. So that, the adverse consequence of the cancellation of the earlier fixation could be avoided to the extent possible. The said request of the applicant was rejected as per Annexure-A3 order dated 26.11.2015 issued by the Head of the Department. The applicant had filed Annexure-A4 appeal dated 20.01.2016 before the State Government, which has also been rejected O.P(KAT) No.208 of 2021 7 by the authority as per Annexure-A6 order dated 21.12.2016. The main ground of rejection of the plea of the applicant for re-option, in terms of para 3 (iii) of Annexure-A5 G.O dated 05.01.2012 is that para.4 (v) of Annexure-A5 G.O stipulates that such re-option in terms of that G.O has to be exercised within three months from the date of the said G.O and no further chance of re-option will be granted for 2004 pay revision. That, in the instant case Annexure-A5 G.O was issued on 05.01.2012 and the maximum time limit stipulated in terms of para.4(v) thereof, had expired on 05.04.2012. That in the instant case, the applicant had sought for re-option much after the said outer time limit. 6. The Tribunal after hearing both sides has taken the view that a mere reading of Annexure-A5 G.O, more particularly, para.3(iii) thereof would make it clear that reduction in the revised pay fixed consequent on audit scrutiny, which can be rectified by a change of option, could also come within the ambit of re-options envisaged in terms of Annexure-A5 G.O. Para.3 of Annexure-A5 G.O reads as follows [ _see page No.36 of the paper book of the O.P_ ] : _“3) Government have examined the matter in detail and are pleased to order that a further last chance for re-option for pay_ O.P(KAT) No.208 of 2021 8 _revision 2004 will be permitted to all State Government employees and teachers coming under State pay scales, in the following cases/circumstances._ - _(i) Retrospective promotion ordered prior to the date of effect of option of the employee_ - _(ii) Cases involving retrospective change in pre revision pay consequent on audit scrutiny/objection, or any other reason with reference to which pay in the revised scale was fixed._ - _(iii) Reduction in the revised pay fixed consequent on audit scrutiny, which can be rectified by a change of option”_ There does not appear to be much dispute that if, the applicant is given the benefit of re-option in terms of para.3(iii) since the whole issue has arisen only on account of audit objections in terms of Annexure-A1, then, the impact of the adverse consequences could be reduced to the extent possible. It is true that para.4(v) of Annexure-A5 G.O stipulates that re-option in terms of that G.O will have to be exercised within three months from the date of that G.O and that no further chance of re-option will be granted for 2004 pay revision. 7. If a literal approach as contended by the petitioners herein is accepted, then certainly, the time limit thereof was only upto 05.04.2012. Whereas, the applicant sought the benefit of re-option as per Annexure-A2 on 16.10.2015. But it has to be noted that the initial O.P(KAT) No.208 of 2021 9 option of the applicant for the 2000 pay revision in terms of G.O(P) No.145/2006/Fin. Dated 01.04.2006 was duly accepted by the department sometime in April/May, 2006 or so. None of the departmental authorities or State Government or the Accountant General had ever raised any objections thereto. Ordinarily, a mistake of this nature should have been detected by the departmental authorities themselves or at any rate, this should have been detected at the time of annual audit conducted by the officials concerned in the Accountant General office. It is well-known to all concerned in the department that the applicant had entered service on 19.04.1990, which fact would be clear from a mere reading of his service book. Ordinarily, he would have completed 16 years therefrom on 19.04.2006. The fact that, before that he had already taken 41 days Leave Without Allowance was also well-known to the department and the same would have been ordinarily entered in the service book as well. The respondents in the O.A have no case whatsoever that the applicant has contributed to any fraud or misrepresentation in getting his option for the 2004 pay revision accepted. From the pleadings and materials on record, the specific case of the respondents in the O.A is that the option was then O.P(KAT) No.208 of 2021 10 accepted by the departmental authorities consequent to a mistake and that they had overlooked the crucial fact that the applicant had taken 41 days LWA during the period in question and the said 41 days period should not have been reckoned for calculating 16 years of service from the date of entry. Therefore, a matter of this nature should have been detected at least within a period of three years, since there is no case case of any fraud committed by anyone. It is the admitted case of the respondents in the O.A that the Accountant General office has belatedly detected the said mistake only as per Annexure-A1(2) issued sometime in 2015 and the same was communicated to the applicant as per Annexure-A1(1) UO Note dated 12.10.2015 issued by the Head of the office concerned. Therefore, in a case like this, a purposive construction of Annexure-A5 G.O, could lead to the situation that the outer time limit of three months in a case covered by para.3(iii) thereof related to audit objection, may have to be counted from the date of communication of audit objections, in a case where the audit objection has been raised after the expiry of the outer time limit of four months of Annexure-A5. Otherwise, in a case like this a literal interpretative approach, may defeat the very object and purpose of the re-option O.P(KAT) No.208 of 2021 11 facility granted in terms of Annexure-A5. If such a literal approach is taken, then it will lead to the situation that the courts exercising judicial review will have to seriously examine the question of delay on the part of the authorities concerned in raising the audit objections. In the instant case, the delay is of more than nine long years. Nothing prevented the departmental authorities or the Accountant General office authorities to detect the error at any point of time or at least within a period of three years from the date of committing of the mistake concerned. Moreover, it appears that at the relevant time the applicant was holding a class-III or class-IV post. In such a scenario, the applicant can raise a strong contention based on the dictum laid down by the Apex Court in the decisions as in _**State of Punjab v. Rafiq Masih**_ ( **Whitewasher's case** ) [(2015) 4 SCC 334], _**High Court of Haryana & Punjab v Jagdev Singh**_ [AIR 2016 SC 3523], which has laid down the guidelines regarding the permissibility of recovery. On the other hand, the Tribunal has taken a via-media course of action and has taken the view that since the mistake is admitted by not only the department but also by the applicant, the applicant should be given the benefit of re-option in terms of para.3(iii) O.P(KAT) No.208 of 2021 12 of Annexure-A5 G.O, as the issue arose out of audit objection. So that, the impact of the adverse consequent is reduced and at the same time, the interest of the department to ensure that the mistake is rectified, is also duly addressed. Hence, in the instant case, we are of the firm view that the reasonings and conclusions given by the Tribunal in the impugned verdict cannot be said to be perverse or unreasonable. It is all the more so, since audit objection in terms of Annexure-A1 has been communicated to the applicant only on 12.10.2015 even though, the initial option was accepted sometime in April/May, 2006. Hence, the view taken by the Tribunal that the three months outer time limit in terms of para.4(v) of Annexure-A5 G.O has to be computed from the date on which the audit objection has been raised in a case where audit objection has been raised belatedly as in the instant case, does not appear to be thoroughly unreasonable or perverse. On the other hand, we feel that it is reasonably plausible view. If a strict literal interpretation of the provisions contained in Annexure-A5 G.O had been taken, then it could have strongly resulted in the scenario of even the court exercising power of judicial review, so as to direct that the entire recovery itself is bad, as it is barred by inordinate delay and O.P(KAT) No.208 of 2021 13 laches on the part of the authorities concerned. The abovesaid via-media course of action taken by the Tribunal, protects the interests and rights of both sides and is also on the basis of principles of law and equity. Hence, we are of the firm view that no interference is called for with the well-considered verdict of the Tribunal. 8. However, we note from a reading of para.12 of Ext.P-6 final order rendered by the Tribunal that since his entire pension benefits were withheld on account of the abovesaid controversy, the applicant was constrained to remit the entire amount of Rs.1,10,369/- consequent to the alleged recovery, as per Annexure-A8 challan receipt. Hence, the Tribunal has directed that after working out the re-option of the applicant in terms of para.3 of Annexure-A5 G.O, the competent authority among the respondents in the O.A should return the amount remitted by the applicant as per Annexure-A8 challan after deducting any excess amount due from him as per the revised pay fixation consequent to the re-option, within one month from the date of the order re-fixing his pay, as directed supra, etc. Hence, it is ordered that the competent authority among the petitioners in the O.P will ensure that the directions of the Tribunal are complied with, without any further delay, at any rate, within six weeks from the date of receipt of a O.P(KAT) No.208 of 2021 14 certified copy of this judgment. 9. The Secretary to the office of the Advocate General will ensure that copies of this judgment are forwarded to all the petitioners in the O.P/respondents in the O.A, for necessary information and immediate action. The Registry will also forward a copy of this judgment to the respondent in the O.P/sole applicant in the O.A, for necessary information. With these observations and directions, the above Original Petition will stand dismissed. **Sd/ALEXANDER THOMAS, JUDGE** **Sd/-** ## **A.BADHARUDEEN, JUDGE** vgd O.P(KAT) No.208 of 2021 15 ## **APPENDIX OF OP(KAT) 208/2021** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE OA NO.630/2017 ALONG WITH ANNEXURES.** **ANNEXURE A1 TRUE COPY OF THE UO NOTE NO.6395/2015/GCP E4 DATED 12/10/2015 OF THE DIRECTOR OF PRINTING WITH AUDIT ENQUIRY NO.23 DATED NIL OF THE PART II OF THE ACCOUNTANT GENERAL.** **ANNEXURE A2 TRUE COPY OF THE REPRESENTATION DATED 08/10/2015 SUBMITTED BY THE RESPONDENT TO THE THIRD PETITIONER.** **ANNEXURE A3 TRUE COPY OF THE LETTER NO.27159/2015/E4 DATED 26/11/2015 FROM THE THIRD PETITIONER REJECTING THE REQUEST OF THE RESPONDENT.** **ANNEXURE A4 TRUE COPY OF THE REPRESENTATION DATED 20/01/2016 OF THE RESPONDENT TO THE SECOND PETITIONER. ANNEXURE A5 TRUE COPY OF THE GO(P) NO.8/2012/FIN DATED 05/01/2012 GIVING PERMISSION FOR RE-OPTION.** **ANNEXURE A6 TRUE COPY OF THE LETTER NO. HEDNH1/207/2016/H.EDN DATED 21/12/2016 REJECTING THE REQUEST OF THE RESPONDENT. ANNEXURE A7 TRUE COPY OF THE PROCEEDINGS NO.463/16/E3 DATED 08/03/2017 OF THE DEPUTY SUPERINTENDENT, GOVERNMENT PRESS, SHORNUR ORDERING RECOVERY OF EXCESS PAY DRAWN BY THE APPLICANT. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE THIRD PETITIONER ON 18/07/2017.** O.P(KAT) No.208 of 2021 16 ## **EXHIBIT P3** **TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENT DATED 22/08/2017.** - **EXHIBIT P4** **TRUE COPY OF THE REPLY STATEMENT FILED BY THE SECOND PETITIONER ON 02/11/2017 ALONG WITH ANNEXURES.** - **ANNEXURE R2(A)** - **TRUE COPY OF JUDGMENT IN WPC NO. 2387/2005 DATED 03/01/2012.** - **ANNEXURE R2(B)** - **TRUE COPY OF JUDGMENT IN WA NO. 1209/2009 DATED 24/06/2009.** ## **EXHIBIT P5** - **TRUE COPY OF THE MISCELLANEOUS APPLICATION NO.2318/2019 FOR ACCEPT ADDITIONAL DOCUMENTS AND TO ORDER REFUND OF AMOUNT ILLEGALLY RECOVERED DATED 30/10/2019 ALONG WITH ANNEXURES.** - **ANNEXURE A8 TRUE COPY OF THE CHALLAN NO.911 DATED 22/12/2017 FOR RS.1,10,369/- REMITTED TO SUB TREASURE, SHORNUR.** - **ANNEXURE A9 TRUE COPY OF THE ORDERS OF THE HONOURABLE HIGH COURT OF KEALA IN SAINABA BEEVI VS. KERALA FOREST DEVELOPMENT CORPORATION DATED 03/04/2017 IN WPC NO.17879/2011.** ## **ANNEXURE A10** - **TRUE COPY OF THE GO(RT) NO.675/2017/FWD DATED 15/02/2017 ISSUED BY GOVERNMENT.** - **EXHIBIT P6** **TRUE COPY OF THE ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DATED 13/02/2020 IN THE AFORESAID ORIGINAL APPLICATION.**