Cherian L. Daniel v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 06TH DAY OF NOVEMBER 2019 / 15TH KARTHIKA, 1941** ## **WP(C).No.22969 OF 2010(U)** ## **PETITIONER/S:** **CHERIAN L.DANIEL S/O.LATE DANIEL CHERIAN, RESIDING AT, EDAYIL HOUSE, OMALLOOR P.O., PATHANAMTHITTA,, FORMER HEADMASTER, M.D.L.P.S., KUMBAZHA.** **BY ADV. SRI.V.PHILIP MATHEW** ## **RESPONDENT/S:** - **1 STATE OF KERALA AND OTHERS BY SECRETARY, DEPARTMENT OF FINANCE,, (PAY REVISION CELL-A), KERALA GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM.** - **2 ACCOUNTANT GENERAL A E, INDIAN AUDIT AND ACCOUNTS DEPARTMENT,, OFFICE OF THE ACCOUNTANT GENERAL (A & E),, KERALA, M.G.ROAD, P.B.NO.5607,, THIRUVANANTHAPURAM-695 039.** - **3 SENIOR ACCOUNTS OFFICER, INDIAN AUDIT AND ACCOUNTS DEPARTMENT,, OFFICE OF THE ACCOUNTANT GENERAL (A & E) KERALA,, M.G.ROAD, P.B.NO.5608, THIRUVANANTHAPURAM-, 695 039.** - **4 DISTRICT TREASURY OFFICER, PATHANAMTHITTA. 5 SUB TREASURY OFFICER, PATHANAMTHITTA. 6 ASSISTANT EDUCATIONAL OFFICER, PATHANAMTHITTA.** ## **OTHER PRESENT:** **BY GOVERNMENT PLEADER SMT.VIDYA C. BALAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.22969 OF 2010(U) ..2.. ## **JUDGMENT** This writ petition is filed challenging Exts.P8 & P9 communications, by which the petitioner's pension has been reduced on the ground that there is a mistake in the fixation of pay with effect from 14.07.1994. ## 2. Heard. 3. The petitioner is a Primary School Headmaster, who retired from service on 30.06.1998. It is submitted that on the basis of re-option submitted by him, his pay was fixed at Rs.2,360/- with effect from 14.07.1994. The Local Fund Audit conducted an audit and, by Ext.P2 report, raised an objection with regard to the fixation of the petitioner's pay as Rs.2,360/- from 14.07.1994. The petitioner's pay was revised after his retirement by Ext.P3 proceedings dated 04.08.2004. The 6[th] respondent, thereafter, forwarded the service book of the petitioner for revision of WP(C).No.22969 OF 2010(U) **==> picture [31 x 8] intentionally omitted <==** pension. The petitioner had submitted representation, pointing out the anomaly in the fixation of his pay with reference to the pay of one Smt.Mary Joshuva V., a retired Headmistress, who he claims to be his junior. Though by Ext.P6 letter, the 2[nd] respondent directed the 6[th] respondent to consider and dispose of the representation, the petitioner was informed by Ext.P7 that the anomaly cannot be rectified since these records were not available in the office and since the audit objection against fixation of petitioner's pay had not been finalized. Thereafter, by Ext.P8 proceedings dated 04.05.2010, the basic pension of the petitioner has been reduced. By Ext.P9, the 6[th] respondent was informed of the revision and was directed to implement the same. This action is under challenge. 4. The learned counsel for the petitioner submits that the petitioner retired from service on WP(C).No.22969 OF 2010(U) **==> picture [31 x 8] intentionally omitted <==** 30.06.1998. There was absolutely no allegation as to any complicity on his part in the matter of fixation of pay. Further, issuance of Exts.P8 & P9 long after his retirement without issuing notice is completely untenable. Relying on the decision of the apex court in **State of Punjab** v. **Rafiq Masih (White Washer)** [2014 KHC 4818], it is submitted that in the absence of any allegation as to the complicity of the petitioner in the matter of fixation of pay, recovery or reduction cannot be effected long after the petitioner's retirement in 1998. 5. Detailed counter affidavit has been filed by the respondents, wherein it is contended that audit objection was raised before the retirement of the petitioner and that the pay had been revised in the year 2000. Learned Government Pleader places reliance on the decision in **Sivan Kurup N.** v. **Kerala State** WP(C).No.22969 OF 2010(U) **==> picture [31 x 8] intentionally omitted <==** ## **Road Transport Corporation, Thiruvananthapuram** [2018 (2) KHC 571] in support of his contentions. He also refers to Rule 3(C) of Part III KSR. 6. I have considered the submissions advanced. 7. Rule 3C of Part III KSR reads as follows: “3C. Notwithstanding anything contained in these Rules, recovery of excess payments made to an officer by mistake within a period of 4 years before his retirement and which are detected within a period of 4 years after retirement may be made from his pension and other amounts due to him after retirement subject to the condition that such deduction if made from his pension shall be effected only in monthly instalments in whole Rupees and that the amount of each instalment shall not exceed 10% of the monthly pension admissible to him”. It is clear from a reading of Rule 3(C) of Part III KSR that what is contemplated is the recovery of amounts wrongly paid within a specified period. The respondents cannot rely on Rule 3(C) of Part III KSR to contend that recovery can be made at any distance of time without taking note of the fact that the WP(C).No.22969 OF 2010(U) **==> picture [31 x 8] intentionally omitted <==** petitioner had retired from service in the year, 1998 and there is no complicity alleged against him. The decision in **Sivan Kurup N.** 's case ( _supra_ ) specifically refers to a fact situation, where the petitioner therein was found guilty of suppression of material facts and misrepresentation and obtained a wrong fixation of pay. In the said case, the petitioner had retired from service in 2015 and recovery was ordered on 05.08.2017. The facts of the above case have no application to the instant case. Therefore, this Court is of the view that the steps taken for reduction of pension of the petitioner without notice at a distance of 12 years from the date of retirement is completely unjustified. After the petitioner's retirement in 1998, nothing prevented the respondents from taking appropriate steps for refixation of pension within a reasonable time after putting the WP(C).No.22969 OF 2010(U) **==> picture [31 x 8] intentionally omitted <==** petitioner on notice and after considering his objections, if any. Having chosen not to do so, the respondents cannot rely on Rule 3(C) of Part IV, KSR to defend a reduction in pension after 12 years, that too, without any further notice. The petitioner, an aided school headmaster, who retired in 1998, is therefore, entitled to enjoy the pension, which was fixed and was being paid to him more than a decade ago. The dictum laid down by the Apex Court in **Rafiq Masih (White Washer)** 's case ( _supra_ ) is squarely applicable in the instant case. In the result, this writ petition is allowed and Exts.P8 & P9 are set aside. ## **Sd/-** ## **ANU SIVARAMAN** ## **JUDGE** Bka/06.11.2019 WP(C).No.22969 OF 2010(U) ..8.. ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF THE STATEMENT OF FIXATION OF PAY DATED 03.05.1995** **EXHIBIT P2** **COPY OF THE REPORT OF LOCAL AUDIT FOR THE YEAR 1996-97 SUBMITTED BY SENIOR SUPERINTENDENT, A.E.OFFICE, PATHANAMTHITTA.** - **EXHIBIT P3 COPY OF THE ORDER NO.A-2201/97 DATED 04.08.2004 ISSUED BY THE SIXTH RESPONDENT.** - **EXHIBIT P4 COPY OF LETTER DATED 17.11.2005 ISSUED BY THE SECOND RESPONDENT.** - **EXHIBIT P5 COPY OF THE COVERING LETTER NUMBER E/461/05.** - **EXHIBIT P6 COPY OF THE LETTER DATED 10.02.2006 FROM THE SECOND RESPONDENT TO THE SIXTH RESPONDENT.** **EXHIBIT P7 COPY OF THE LETTER DATED 22.02.2006 ISSUED BY 6TH RESPONDENT.** **EXHIBIT P8 COPY OF THE LETTER DATED 04.05.2010 ISSUED BY THIRD RESPONDENT.** **EXHIBIT P9** **COPY OF THE LETTER DATED 4.5.2010**