C. Rajan v. Travancore Devaswom Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943** ## **WP(C).No.28533 OF 2020(N)** ## **PETITIONER:** **C.K.RAJAN, AGED 58, S/O.A.R.KESAVAPILLAI, CHUNDALAYIL EDAPURAYIL, (EDAPPURAYIL PUTHEN VEEDU), MUDIYOORKONAM P.O., PANDALAM - 689 501.** **BY ADVS. SRI.K.SASIKUMAR SRI.S.ARAVIND SRI.P.S.RAGHUKUMAR SRI.K.JANARDHANA SHENOY** ## **RESPONDENTS:** **1 THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANTHANCODE, THIRUVANANTHAPURAM - 695 034. 2 THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM - 695 034.** **3 THE ASSISTANT DEVASWOM ACCOUNTS OFFICER, TRAVANCORE DEVASWOM BOARD, AMBALAPUZHA GROUP, AMBALAPUZHA, ALLEPPEY DISTRICT - 688 561.** - **4 ASSISTANT DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, ARANMULA GROUP, ARANMULA, PATHANAMTHITTA DISTRICT - 689 533.** - **5 THE SUB GROUP OFFICER, TRAVANCORE DEVASWOM BOARD, OMALLOOR SUB GROUP OFFICE, OMALLOOR, PATHANAMTHITTA DISTRICT - 689 647.** ## **BY ADV. SRI.C.K.PAVITHRAN, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No.28533 OF 2020(N)** **-2-** ## **JUDGMENT** ## **Dated this the 24th day of March 2021** The petitioner says that he retired from the services of ‘Travancore Devaswom Board’ (‘the Board’, for short), Thiruvananthapuram, on 31.07.2018; and that since his terminal benefits had not been disbursed thereafter, he approached this Court by filing W.P.(C)No.27434 of 2019, which culminated in Ext.P1 judgment, dated 02.12.2019, directing the Board to settle his terminal benefits within a period of three months. 2. The petitioner contends that, in spite of the afore directions in the judgment, since the Board did not pay him the terminal benefits, he had to file contempt case No.1119 of 2020, pending which, the 2[nd] respondent – Devaswom Commissioner, issued Ext.P2 order sanctioning his DCRG; however, withholding an amount of Rs.1,38,619/-, stated to be an excess amount paid to him at the time when ## **WP(C).No.28533 OF 2020(N)** **-3-** his Pay Revision benefits were granted in the year 1989. 3. The petitioner alleges that Ext.P2 order, withholding the above mentioned amount, is egregiously improper and grossly in violation of the declarations of law by the Hon’ble Supreme Court in **State of Punjab v. Rafiq Masih (White** **Washer)** [2015(4) SCC 334]. He, therefore, prays that Ext.P2 be quashed, to the extent to which it retains an amount of Rs.1,38,619/- from his DCRG; with a consequential direction to the respondents to pay him said amount within a time frame to be fixed by this Court. 4. I have heard Sri.K.Sasikumar - learned counsel for the petitioner and Sri.C.K.Pavithran – learned Standing Counsel appearing for the Board. 5. The contentions of the petitioner - as recorded above - were sought to be answered by Sri.C.K.Pavithran, by showing me that the ## **WP(C).No.28533 OF 2020(N)** **-4-** petitioner had given an undertaking, namely, Ext.R1 on 05.11.2018, granting liberty to the Board to recover any amount from him on account of a liability that may be found against him during his service period. 6. The learned Standing Counsel, therefore, submitted that going by subsequent judgment of the Supreme Court in **High Court of Punjab & Haryana & Others v. Jaydev Singh [(2016) 14 SCC 267],** recovery of the amount of Rs.1,38,619/- from the petitioner’s DCRG cannot be found to be in error. He thus prayed that this writ petition be dismissed. 7. I am afraid that I cannot find favour with the above submissions of Sri.C.K.Pavithran because, obviously, the Board has misinterpreted the declarations in **Jaydev Singh** (supra). This is because, as is evident from said judgment, an exemption was drawn to the holdings in **Rafiq Masih** ## **WP(C).No.28533 OF 2020(N)** **-5-** (supra) only in cases where an employee had given an undertaking that the amounts of wrong fixation, or such other liability, can be recovered from him at the time when the said benefit was granted to him. 8. In the case at hand, it is conceded that the petitioner’s Pay Revision was effected in March 1989; and that for nearly 20 years thereafter, no action had been taken to recover any amount from him. It is only when the petitioner was retiring from service that an undertaking was obtained from him on 05.11.2018, without specifying any liability; but merely recording a declaration therein that the Board may recover any amount that have been paid in excess or fixed as liability against him. Indubitably, this is not an undertaking of the kind which is referred to by the Supreme Court in **Jaydev Singh** (supra) and resultantly, therefore, the ## **WP(C).No.28533 OF 2020(N)** **-6-** declaration in **Rafiq Masih** (supra) would apply in all its force to the case at hand. 9. This is more so because the Board does not have a case that any liability had been fixed against the petitioner at any time when he was in service and or that the objected amounts were paid to him in the year 1989 on account of any misrepresentation, fraud or other reasons that can be attributed to him. On the contrary, the Board virtually admits that the amounts in question were paid to the petitioner, without any fault that can be imputed against him, based on valid and legal orders issued by the competent Authorities at the relevant time. It is, therefore, without requirement of any further expatiation that no recovery is possible from his DCRG, based on the judgment of the Supreme Court in **Rafiq Masih** (supra). In the afore circumstances, I allow this ## **WP(C).No.28533 OF 2020(N)** **-7-** writ petition and set aside Ext.P2, to the extent to which it orders retention of an amount of Rs.1,38,619/- from the petitioner’s DCRG; with a consequential direction to the competent respondent to ensure that this amount is disbursed to the petitioner, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment; failing which the said amount will carry interest at the rate 9% per annum, from the date on which it became due, till it is actually paid. This writ petition is thus ordered. ## **Sd/DEVAN RAMACHANDRAN JUDGE** akv ## **WP(C).No.28533 OF 2020(N)** **-8-** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE JUDGMENT DATED 02/12/2019 OF THIS HON'BLE COURT IN WPC NO.27434/2019.** **EXHIBIT P2 A TRUE COPY OF THE ORDER ROC 26217/18/GRATUITY DATED 11/08/2020 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P3 A TRUE COPY OF THE JUDGMENT DATED 24/09/2020 OF THIS HON'BLE COURT IN CONTEMPT CASE (CIVIL) NO.1119/2020.** **EXHIBIT P4 A TRUE COPY OF THE ORDER ROC NO.8639/19/MISC.1 DATED 19/11/2020 ISSUED BY THE 1ST RESPONDENT.** **RESPONDENT'S/S EXHIBITS :** **EXHIBIT R1 TRUE COPY OF THE CONSENT LETTER DATED 5.11.18 SUBMITTED BY THE PETITIONER.** //TRUE COPY// P.A. TO JUDGE