High Court of KeralaSingle Judge2019-03-18Writ petition allowed; Ext.P1 quashed; gratuity...

C.M. Subair v. State of Kerala and others

Case / Petition Number:WP(C).No. 34228 of 2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Justice Anu Sivaramanan
Judgment Date: 2019-03-18
Court Decision / Holding: Ext.P1 proceedings directing recovery from the petitioner's gratuity are set aside. The court directs the respondents to release the amounts withheld from the petitioner's gratuity at the earliest; the writ petition is allowed.
Final Disposition: Writ petition allowed; Ext.P1 quashed; gratuity to be released

Parties to the Case

Appellants / Petitioners

C.M. Subair

Respondents

State of Kerala represented by its Secretary to Government, Food and Civil Supplies Department
The Chairman and Managing Director, Kerala State Civil Supplies Corporation Ltd. (Supplyco)
The Assistant Manager, Taluk Depot, KSCSC, Thalayolapparambu, Vaikom, Kottayam District

Legal Representation & Advocates

Counsels for Petitioners

• Sri. V.A. Muhammed

Counsels for Respondents

• Sri. T.B. Gafoor, SC, KSCSC (Supplyco)
• Ms. Moly Jacob, SC

Case Synopsis & Summary

This writ petition challenges Ext.P1 proceedings dated 30.01.2018, by which an amount of Rs.3,29,616 was sought to be recovered from the petitioner's gratuity for a wrong grant of the 1st Time Bound Higher Grade (TBHG). The petitioner had retired on 31.03.2017 as a Junior Assistant and was initially granted TBHG in 1993, which was later found to be erroneous because increments had been barred with cumulative effect from 01.07.1989. The said period should have barred the TBHG and prevented its earlier grant. The TBHG was sanctioned with effect from 10.06.1993 and pay regularized; however, following retirement, respondents invoked Ext.P1 to recoup the amount paid on the basis of the incorrect fixation. The petitioner argues that he had no role in the erroneous fixation and that recovery after retirement, after a long delay, is unjustifiable, especially since the penalty of reduced increments was already imposed in 1989. The respondents contend that the mis-fixation justifies recovery and that the petitioner could seek relief under the Payment of Gratuity Act, 1972, but the court’s view focuses on the inequity of recovering from gratuity after decades. The High Court relies on the Supreme Court’s decision in State of Punjab v. Rafiq Masih to hold that recovery after retirement is unjustifiable and sets aside Ext.P1, directing early release of the withheld gratuity.

Provisions of Law Cited

Payment of Gratuity Act, 1972

Legal Doctrines & Maxims

Recovery from gratuity after retirement after a long delay is unjustifiable; equity and public policy favor protecting pensionary benefits
Reliance on State of Punjab v. Rafiq Masih (White Washer case) to justify non-recovery after retirement

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that recovery from gratuity for an error in fixation caused by the respondents’ actions, in which he played no part, is unjustifiable. He was a low-paid employee who retired in 2017. The three increments barred in 1989 were the basis of the initial error; the TBHG grant in 1993 was erroneous and later rectified, but the recovery from gratuity was pursued long after retirement. The petitioner argues there is no connection between him and the erroneous fixation and cites the Payment of Gratuity Act as an alternative remedy; the long lapse since the error is a decisive factor against recovery.

Contentions of Respondents

The respondents contend that Ext.P1 is a valid recovery measure for an erroneous fixation that benefited the petitioner; the TBHG grant was made in 1993 without considering the increments bar, and the petitioner obtained benefits for years. They emphasize the long-standing error’s discovery at retirement and argue that re-fixation and recovery can be effected, with the petitioner having alternative recourse under the Payment of Gratuity Act. The court was urged to uphold the recovery or, at least, permit fixation adjustments while possibly recovering amounts through pension re-fixation rather than gratuity.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Punjab v. Rafiq Masih (White Washer case)	(2015) 1 KLT 429 (SC)	Positive	The Supreme Court decision is cited and relied upon to support the proposition that recovery after retirement and after a long delay is unjustifiable, forming a basis for quashing Ext.P1.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY ,THE 18TH DAY OF MARCH 2019 / 27TH PHALGUNA, 1940** ## **WP(C).No. 34228 of 2018** ## **PETITIONER/S:** **C.M.SUBAIR AGED 59 YEARS** **SON OF MUHAMMED KUNJU, JUNIOR ASSISTANT(RETIRED), TALUK DEPOT, SUPPLYCO, THALAYOLAPARAMBU, VAIKKOM, KOTTAYAM DISTRICT(RESDING AT CHOORAVELIL, KATTIKUNNU P O, CHEMBU VAIKOM, KOTTAYAM DISTRICT)** **BY ADV. SRI.V.A.MUHAMMED** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, FOOD AND CIVIL SUPPLIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001** - **2 THE CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE CIVIL SUPPLIES, CORPORATION LTD., HEAD OFFICE, MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, ERNAKULAM 682020** - **3 THE ASSISTANT MANAGER, TALUK DEPOT, KERALA STATE CIVIL SUPPLIES CORPORATION LTD., THALAYOLAPARAMBU, VAIKOM,. KOTTAYAM DISTRICT 686605** **BY ADV. SRI. T.B.GAFOOR, SC, KERALA STATE CIVIL SUPPLIES CORPORATION LTD, (SUPPLYCO) SMT. MOLY JACOB, SC** ## **OTHER PRESENT:** ## **SR GP. SUNILKUMAR KURIAKOSE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 34228 of 2018** **2** ## **JUDGMENT** The petitioner has approached this Court challenging Ext.P1 proceedings dated 30.1.2018, by which an amount of Rs.3,29,616/- is sought to be covered from the petitioner's gratuity. 2. It is submitted that the petitioner had retired from service on 31.3.2017. It is stated that the petitioner had been granted 1[st] Time Bound Higher Grade on 10.6.1993. It is stated that when the service book of the incumbent was verified, it was found that three of his annual increments had been barred with cumulative effect from 1.7.1989 and that the said period had erroneously been taken into account for grant of 1[st] Time Bound Higher Grade. It is stated that the 1[st] Time Bound Higher Grade granted to the petitioner with effect from 10.6.1993 was therefore cancelled and the 1[st] Time Bound Higher Grade was sanctioned with effect from 1.1.1997 and the pay has been regularized. It is stated that an amount of Rs.3,29,616/- had therefore been paid on **WP(C).No. 34228 of 2018** **3** account of the wrong grant of 1[st] Time Bound Higher Grade. 3. The learned counsel for the petitioner submits that the petitioner was a low paid employee and there was no involvement of the petitioner in the wrong grant of 1[st] Time Bound Higher Grade. It is stated that the recovery of amounts due on account of wrong fixation of pay of the petitioner from the gratuity due to the petitioner was completely unjustifiable. It is contended that the penalty imposed had been recorded in the petitioner's service book in time. But the respondents had failed to consider the said penalty, while granting the Time Bound Higher Grades to the petitioner. It is stated that since the error had occurred in the year 1993, the amounts due cannot be recovered from the petitioner's gratuity at this distance of time. 4. A detailed counter affidavit has been placed on record by respondents 2 and 3. It is stated that the petitioner had entered service as Helper in 1984. He was suspended on 20.12.1986 and had been ## **WP(C).No. 34228 of 2018** ## **4** reinstated on 21.11.1987. It is stated that disciplinary proceedings were finalized and the withholding of three increments with cumulative effect was imposed as penalty. The petitioner's suspension was regularized and increments due on 1.7.1989, 1.7.1991 and 1.7.1992 were barred. However, the 1[st] Time Bound Higher Grade was sanctioned to the petitioner on 10.6.1993, without considering the bar of the increments. It is stated that the petitioner was retired from the service on 31.3.2017. It is stated that on verifying the service book at the time of retirement, it was found that the 1[st] Time Bound Higher Grade had been wrongly granted on 10.6.1993, without reference to the bar of increments, which was imposed on the petitioner. It is stated that he was entitled to the 1[st] Time Bound Higher Grade only with effect from 1.1.1997. Therefore his entire pay was re-fixed and the recovery was ordered. It is also contended that the petitioner had given an undertaking on 1.2.2018 for release of the amounts, after recovering the **WP(C).No. 34228 of 2018** **5** liability of 3,29,616/- found due. 5. The learned Standing Counsel appearing for the respondents would submit that the petitioner has an alternative remedy of approaching the authority under the Payment of Gratuity Act, 1972 for release of amounts due to him. It is contended that since the fixation of the petitioner's pay and the grant of 1[st] Time Bound Higher Grade on 10.6.1993 was erroneous, the respondents are justified in making the deduction from his gratuity. I have considered the contentions advanced. The petitioner was a low paid employee having retired from service as a Junior Assistant on 31.3.2017. He was apparently imposed with a penalty of barring of three increments with cumulative effect while he was working as Helper in the year 1989. The petitioner was granted all the benefits on the wrong grant of the 1[st] Time Bound Higher Grade with effect from 10.6.1993. It is only on verification of the service book at the time of his retirement that the error committed appears to have been noticed. Ext.P1 **WP(C).No. 34228 of 2018 6** refers to a letter dated 17.10.2017. It is therefore apparent that it is only after the retirement of the petitioner that the error occurred in granting the 1[st] Time Bound Higher Grade with effect from 10.6.1993 had been noticed by the respondents. It is thereafter that Ext.P1 proceedings have been issued and steps are taken to recover the amounts from the petitioner's gratuity. I am of the opinion that the recovery of amounts due on a wrong fixation, in which the petitioner had absolutely no complicity, is impermissible after the long delay, as has occurred in the instant case. While it may be permissible for the respondents to re-fix the pensionary benefits due to the petitioner, I am of the certain view that the amounts to which the petitioner had been found entitled from 1993 onwards cannot be re-fixed and recovered at this distance of time, on the strength of a proceedings which had been issued, after the retirement of the petitioner. Ext.P1 proceedings, directing a recovery of Rs.3,29,616/- from the petitioner's gratuity is completely unsustainable. **WP(C).No. 34228 of 2018 7** I am supported in this view by the decision of the Apex Court in _**State of Punjab v. Rafiq Masih (White Washer case) [2015(1) KLT 429 (SC)]**_ and several other decisions by which the Apex Court has held that recovery after long years from Class III and IV employees, especially after their retirement, is completely unjustifiable. Ext.P1 is therefore set aside. There will be a direction to the respondents to release the amounts withheld from the petitioner's gratuity to the petitioner at the earliest. The writ petition is ordered accordingly. **SD/-** ## **ANU SIVARAMAN** sab **JUDGE** **WP(C).No. 34228 of 2018** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS OF THE ASSISTANT MANAGER TALUK DEPOT, VAIKOM NO. CSC3-546/13 DATED 30.01.2018 EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF THE PETITIONER** RESPONDENT'S EXHIBITS: EXHIBIT R3(a) TRUE COPY OF THE LETTER ISSUED B Y THE PETITIONER DATED 01.02.2018