Bexy Reji v. Kerala State Electricity Board and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE EASWARAN S.`** ``` WEDNESDAY, THE 17[TH] DAY OF JULY 2024 / 26TH ASHADHA, 1946 ``` ## **`WP(C) NO. 3559 OF 2015`** ## **`PETITIONER:`** ``` BEXY REJI W/O .LATE REJI K.S, AGED 38 YEARS, PUTHANTHARA PONNARIMANGALAM, MULAVUKKAD, ERNAKULAM 682504 ``` ``` BY ADVS. SRI.SHERRY J. THOMAS SMT.THAMANA BAI ``` ## **`RESPONDENTS:`** ``` 1KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS CHIEF ENGINEER (HRM) VYDHYUTHI BHAVAN, PATTAM, THIRUVANANTHAPURAM 695004 2THE CHIEF INTERNAL AUDITOR, VYDHYUTHI BHAVAN, PATTAMM, THIRUVANANTHAPURAM 695004 3THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL DIVISION, ERNAKULAM BY ADV SRI.K.S.ANIL, SC, KSEB ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON ``` ``` 17.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 3559 OF 2015 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 17[th] day of July, 2024** The petitioner is the wife of the deceased Reji.K.S, who was working as a lineman in the 1st respondent Board. On the death of the petitioner’s husband, a sum of Rs.1,29,372/- was sanctioned towards DCRG. An amount of Rs.64,286/- was allotted to the petitioner, being the wife of the deceased employee, and an amount of Rs.64,286/- was allotted to the minor daughter of the petitioner. The aforesaid payments were effected from 01.12.2008. Thereafter, the 3[rd] respondent issued a letter directing to deduct an amount of Rs.95,391/- from the DSRG amount, which is already paid. 2. According to the petitioner, the said recovery was without notice to her and hence, Ext.P3 request dated 25.09.2014 was given to the 1[st] respondent. The petitioner further relied on the judgment of this Court in ``` WP(C) NO. 3559 OF 2015 ``` ``` 3 ``` **Baby Shobana v. Kerala State Road Transport Corporation (KSRTC) [2012 (4) KHC 695]** . Thus, according to the petitioner, the recovery now sought for cannot be sustained. 3. A counter afÏdavit has been filed on behalf of the 2nd respondent, in which, it is specifically mentioned that consequent to the pay revision during the month of August 2008, the employees of the Board were entitled for revision of pay. Based on the revision of pay, the family pension and gratuity claim has to be recalculated. Accordingly, on 11.10.2013, the petitioner submitted an application for revision of pension. Ext.R1(c) is such application which is given by the petitioner. Along with the application, the petitioner has given an undertaking that the excess amount paid to her on account of Pensionary Benefits, Dearness Relief or payment made on account of Gratuity as per the payment of Gratuity Act, shall be recovered from the eligible arrears accrued as per this order. Therefore, according to the 2[nd] ``` WP(C) NO. 3559 OF 2015 ``` ``` 4 ``` respondent, in view of the undertaking, the recovery against the petitioner is justified and therefore the same cannot be interfered by this Court in exercise of its powers under Article 226 of the Constitution of India. 4. I have heard Adv. Sherry.J.Thomas, learned counsel appearing for the petitioner and K.S. Anil, the learned Standing Counsel appearing for the respondents. 5. The learned counsel for the petitioner submitted that before effecting recovery as evident from Ext.P2, no notice was issued to the petitioner. Atleast, if the petitioner was put on notice and Ext.P3 representation was considered, the petitioner could have pointed out the quantum of the amount that is liable to be recovered. Since no notice was issued to her, she is not in a position to dispute the quantum which was liable to be recovered. It is also pointed out that the recovery was effected after a period of five years and therefore there was no justification on the side of the respondents to do so. ``` WP(C) NO. 3559 OF 2015 ``` ``` 5 ``` 6. On the other hand, the learned Standing Counsel appearing for the respondents submitted that in view of Ext.R1(c) undertaking, the petitioner cannot be heard to contend that the amounts are not liable to be recovered. He further pointed out that admittedly, after the revision was effected there was excess of the amounts to be paid by the petitioner and hence, recovery was issued. 7. I have considered the rival submissions raised across the Bar. 8. The point which arises for consideration of this Court is as to whether the order of recovery has to be interfered with or not. It is now settled that, if the employee or the incumbents had given an undertaking agreeing for recovery of the excess amounts found due, then they cannot claim equity. If that be so, this Court does not find any illegality in the manner in which the proposed recovery is made. However, at the same time, the learned counsel for the petitioner is justified in ``` WP(C) NO. 3559 OF 2015 ``` ``` 6 ``` contending that in the absence of notice, the petitioner was prejudiced insofar as the petitioner could not object to the quantum of the amount that is liable to be recovered from the arrears of pension that were due to her husband. 9. The counsel for the petitioner further pointed out that certain amounts were given to the minor daughter also, for which no action has been taken by the respondent Board. Considering the totality of the circumstances, I find that an opportunity of hearing could be afforded to the petitioner to object to the proposed recovery which has now been made. While admitting the writ petition, this Court by order dated 04.02.2015 was granted a stay against the recovery from the petitioner. 10. In view of the above, this Court is of the considered view that though inference is to be declined against Ext.P2, the same shall be however considered as a notice and the 1[st] respondent is directed to consider Ext.P3 with notice to the petitioner and also hear the ``` WP(C) NO. 3559 OF 2015 ``` ``` 7 ``` petitioner in person and take a final decision on the proposal, i.e., contained in Ext.P2. Hence, the writ petition is disposed of with the following directions:- a) Ext.P2 shall be treated as a notice proposing the recovery. Since the petitioner has already filed Ext.P3, the petitioner is given the liberty to file an additional representation objecting to the quantum of recovery proposed to be made under Ext.P2. Such representation shall be filed within a period of two weeks from the date of receipt of a copy of this judgment. b) On receipt of such representation, the petitioner shall be intimated the date of hearing and on the said day after hearing the petitioner, the 1st respondent shall take appropriate decision in this regard. c) Needful shall be done, at any rate, within a ``` WP(C) NO. 3559 OF 2015 ``` ``` 8 ``` further period of two months from the date of receipt of a copy of this judgment. ``` Sd/- ``` **EASWARAN S. JUDGE** SPV ``` WP(C) NO. 3559 OF 2015 ``` ``` 9 ``` ## **`APPENDIX OF WP(C) 3559/2015`** ``` PETITIONERS’ EXHIBITS ``` ``` EXHIBIT P1: ``` ``` THE TRUE COPY OF THE LETTER DATED 6.12.2013 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT ``` ``` EXHIBIT P2: ``` ``` THE TRUE COPY OF THE LETTER DATED 18.3.2014 ISSUED TO THE PETITIONER ``` ``` EXHIBIT P3: ``` ``` THE TRUE COPY OF THE REQUEST DATED 25.9.2014 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT ``` ## **`RESPONDENTS’ EXHIBITS:`** ``` EXHIBIT R1(a):TRUE COPY OF THE B.O DATED 24.05.2011 ``` ``` EXHIBIT R1(b):TRUE COPY OF THE B.O DATED 05.06.2012 ``` ``` EXHIBIT R1(c): ``` ``` TRUE COPY OF THE APPLICATION DATED 11.10.2013 ``` ``` //TRUE COPY// ``` ``` PA TO JUDGE ```