High Court of KeralaSingle Judge2022-04-04Writ petition allowed; Exts.P5 and P6 quashed; ...

Joju T John v. Kerala State Library Council and Others

Case / Petition Number:WP(C) No. 22936 of 2020

Neutral Citation:null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.G. Arun
Judgment Date: 2022-04-04
Court Decision / Holding: Writ petition allowed; Exts.P5 and P6 are set aside; Respondents directed to disburse the balance gratuity due as per Ext.P1 and to pay the monthly pension accordingly; arrears of monthly pension and balance DCRG to be disbursed within three months from the date of receipt of the judgment.
Final Disposition: Writ petition allowed; Exts.P5 and P6 quashed; direction to disburse gratuity and pension within three months.

Parties to the Case

Appellants / Petitioners

Joju T John

Respondents

Kerala State Library Council represented by its Secretary
Kerala State Audit Department represented by its Director
State of Kerala represented by the Principal Secretary, Higher Education Department

Legal Representation & Advocates

Counsels for Petitioners

• Chitra Johnson

Counsels for Respondents

• Smt. Bindumol Joseph
• Sri B.S. Syamanthak
• A. Runkumar

Case Synopsis & Summary

Joju T John, who joined the Kerala State Library Council in 1989 and retired as Administrative Officer on 31 July 2019, faced post‑retirement deductions after the Local Fund Audit flagged irregularities in his fixation of pay following an apparently unauthorized promotion. Before retirement, Ext.P1 shows pension and DCRG were calculated. After retirement, Ext.P3 records Government ratification of his promotion to the posts of Extension Officer and Assistant Development Officer on 18.04.2020, and Ext.P4 resulted in confirmation of his revised pay; Ext.P6 later deducted Rs. 5,61,028 from his DCRG and Ext.P5 re-fixed his salary from 01.07.2006. The petitioner challenged Exts.P5 and P6, seeking quashing of those orders and mandamus to disburse withheld pensionary benefits. He argued that promotion was ratified and that long delays in fixation and hearing violated natural justice, and that the recovery was impermissible under the Supreme Court’s decision in Rafiq Masih and Kerala’s decision in Sreedevi T.R. The State contends that Ext.P5 merely ratified promotion and Ext.P6 corrected the salary, and recovery is legitimate to prevent illegal enrichment. The High Court ultimately held that recovery from a retired employee, after more than thirteen years, was impermissible, allowed the petition, set aside Exts.P5 and P6, and ordered disbursement of gratuity and pension within three months.

Provisions of Law Cited

null

Legal Doctrines & Maxims

Recovery from retired employees must be exercised within the narrow exceptions and with an equitable balance, as per Rafiq Masih (White Washer) and subsequent Kerala judgments.
Excess payment made for more than five years before the order of recovery cannot be recovered (Sreedevi T.R.).
Equitable balance / unjust enrichment principle governing post-retirement recoveries.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that Ext.P3 ratified his promotion and therefore the proposed recovery from his pensionary benefits is illegal. Relying on Ext.P7 showing pay scale, he contended that he was not responsible for the alleged fixation anomaly and that the long delay in fixation (and failure to provide prior notice/hearing) before retirement violated natural justice. He invoked the Supreme Court’s decision in Rafiq Masih (White Washer) and Kerala’s decision in Sreedevi T.R to argue that post-retirement recovery is impermissible, especially when the excess payment had persisted for a long period.

Contentions of Respondents

The respondents submitted that Ext.P5 only ratified the petitioner’s promotion and Ext.P6 re-fixed the salary; the petitioner benefited from the erroneous fixation, and recovery is necessary to prevent illegal enrichment. While the petitioner did not challenge the re-fixation, the State argued that there is still liability to repay the excess amount. They relied on the general principle that recovery after retirement may be permissible within narrow limits, and cited Rafiq Masih to justify a careful, equitable approach, noting the delay in fixation and audit-led adjustments as part of administrative action.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
State of Punjab and others v. Rafiq Masih (White Washer)	(2015) 4 SCC 334	Positive	Cited as controlling authority on post-retirement recovery, establishing the principle of limited, equitable recoveries and against harsh enrichment.
State of Kerala and others v. Sreedevi T.R	ILR 2019(4) Kerala 791	Positive	Cited to support the proposition that excess payment made for more than five years prior to the order of recovery cannot be recovered.

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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 MR.JUSTICE V.G.ARUN** **MONDAY, THE 4[TH] DAY OF APRIL 2022 / 14TH CHAITHRA, 1944** ## **WP(C) NO. 22936 OF 2020** ## **PETITIONER/S:** JOJU T JOHN AGED 57 YEARS S/O.T.J.JOHN,T.C.27/61,MRA 64, KIZHAKATHIL LANE,VANCHIYOOR.P.O, TRIVANDRUM695035. BY ADV CHITRA JOHNSON ## **RESPONDENT/S:** 1 KERALA STATE LIBRARY COUNCIL REPRESENTED BY ITS SECRETARY, ETN 43,TC 24/1962,K.ANIRUDHAN ROAD, VAZHUTHACAUD,THIRUVANANTHAPURAM-695014. 2 KERALA STATE AUDIT DEPARTMENT, REPRESENTED BY ITS DIRECTOR, VIKAS BHAVAN,THIRUVANANTHAPURAM-695003. 3 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001. BY ADVS. SMT.BINDUMOL JOSEPH SRI.B.S.SYAMANTHAK A.ARUNKUMAR ## **OTHER PRESENT:** SR.GP.PREMCHAND R. NAIR **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.22936 of 2020 -2- ## **JUDGMENT** Dated this the 04[th] day of April, 2022 **The petitioner had entered the service of Kerala State Library Council as Publication Assistant in the year 1989 and retired as its Administrative Officer on 31.07.2019. Prior to the petitioner's retirement, his pension, DCRG, computation of pension etc were calculated by the first respondent and forwarded to the Kerala State Audit Department under Ext.P1. As per Ext.P1, the DCRG was computed at Rs.12,96,000/and monthly pension fixed at Rs.35,423/-. After the petitioner retired, the State Audit Department noted certain irregularities with respect to the petitioner was promoted without obtaining sanction from the Government. Thereupon, the first respondent requested the** W.P.(C) No.22936 of 2020 -3- **Government to ratify the petitioner's promotion to the posts of Extension Officer and Assistant Development Officer. Accordingly, Ext.P3 order dated 18.04.2020 was issued, regularising the petitioner's promotion. Thereafter, the State Audit Department approved the fixation of salary of the petitioner, pursuant to which the first respondent re-fixed the pay scale under Ext.R1(a). Thereafter, the second respondent issued Ext.P4 order dated 10.06.2020 refixing the petitioner's DCRG at Rs.12,36,600/- and monthly pension at Rs.33,773/-. Consequently, the first respondent issued Ext.P5 re-fixing the petitioner's salary with effect from 01.07.2006 onwards. A perusal of Ext.P6 shows that the salary of the petitioner as on 01.07.2006 was fixed at Rs.12,590/-, whereas the salary actually payable, according to the second respondent, was** W.P.(C) No.22936 of 2020 -4- **Rs.12,250/- and the anomaly continued up to the petitioner's retirement. After making the deduction, petitioner was issued with Ext.P6 order dated 15.09.2020 adjusting an amount of Rs.5,61,028/- from his DCRG. Aggrieved, this writ petition is filed, seeking to quash Exts.P5 and P6 and to declare the recovery proposed by Ext.P6 as illegal. The further prayer is for the issue of a writ of mandamus directing the respondents to disburse the withheld pensionary benefits.** **2. Learned Counsel for the petitioner contended that, insofar as the petitioner's promotion was ratified by the Government vide Ext.P3, the proposal to recover the alleged difference in pay, consequent to his promotion, is patently illegal. It is pointed out that as per Ext.P7, the petitioner's pay scale was** W.P.(C) No.22936 of 2020 -5- **approved even as on 14.07.2015. Learned Counsel contends that, as the petitioner is not responsible for the alleged anomaly in fixation of pay, therefore cannot be any recovery from his salary after retirement. It is contended that the long delay in fixing the salary, by itself, is sufficient ground for setting aside Exts.P5 and P6. Reliance is placed on the decision of the Apex Court in** _**State of Punjab and others v. Rafiq Masih (White Washer) [(2015) 4 SCC 334]**_ **and that of the Division Bench of this Court in** _**State of Kerala and others v.Sreedevi T.R [ILR 2019(4) Kerala 791],**_ **to contend that the recovery from a retired employee is impermissible in law.** **3. Learned Standing Counsel for the first respondent points out that by Ext.P5, only the promotion granted to the petitioner was ratified and the anomaly in pay was directed to be** W.P.(C) No.22936 of 2020 -6- **refixed. In term of the direction issued by the second respondent, the petitioner's salary was refixed by Ext.P6. As the petitioner is not challenging the re-fixation of his salary as incorrect, he cannot wriggle out of the liability to refund the excess amount received by him, which if allowed would result in illegal enrichment.** **4. The undisputed facts are that the petitioner retired from the service of the first respondent on 31.07.2019 and no proceedings, either for refixing the petitioner's pay or for recovery of the alleged excess amount, was initiated while he was in service. The alleged anomaly had occurred on 01.07.2006 and even as on 14.07.2015, the date on which Ext.P7 was issued, the Local Fund Audit Department had not detected the anomaly. The petitioner was not issued with** W.P.(C) No.22936 of 2020 -7- **notice or afforded opportunity of hearing before refixing his salary and effecting consequential recovery/adjustment from his retirement benefits. The limited scope for recovery after retirement, based on alleged excess payment of salary, is well settled by the decision in** _**Rafiq Masih's case (supra).**_ **The following situations are postulated in the said decision;** _**“(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).**_ _**(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.**_ _**(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.**_ _**(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.**_ _**(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh**_ W.P.(C) No.22936 of 2020 -8- _**the equitable balance of the employer's right to recover.”**_ **5** . **As rightly contended by the learned Counsel for the petitioner, even though the petitioner does not belong to class III or class IV service, the other stipulations in the judgment is squarely applicable to the case at hand. In** _**Sreedevi T.R** ,_ **the Division Bench, after taking into account** _**Rafiq Masih**_ **and other precedents had held as follows;** _**“Recovery is impermissible where excess payment has been made for a period exceeding five years, prior to the order for recovery.”**_ **Herein, excess payment had continued for a period of more than 13 years. For the aforementioned reasons, I find the challenge against Exts.P5 and P6 to be well founded.** **In the result, the writ petition is allowed. Exts.P5 and P6 are set aside. Respondents are** **directed to disburse the balance amount of** W.P.(C) No.22936 of 2020 -9- **gratuity due to the petitioner as calculated in Ext.P1, and to pay the monthly pension also accordingly. The arrears of the monthly pension and balance amount of DCRG calculated in the manner stated above, shall be disbursed within an outer limits of three months from the date of receipt of a copy of the judgment.** ## **Sd/-** **V.G.ARUN JUDGE** Scl/ W.P.(C) No.22936 of 2020 -10- ## **APPENDIX OF WP(C) 22936/2020** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PENSION CALCULATION MADE BY THE 1ST RESPONDENT DATED 11.04.2019 EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS NO.K.S.A.T.V.M/796/2/19 DATED 27.08.2019 EXHIBIT P3 TRUE COPY OF THE G.O. (RT)NO.526/202/HEDN DATED 18.04.2020 EXHIBIT P4 TRUE COPY OF THE VERIFICATION REPORT DATED 10.06.2020 EXHIBIT P5 TRUE COPY OF THE ORDER NO.D2-1220/2020 DATED 24.08.2020 EXHIBIT P6 TRUE COPY OF THE ORDER NO.1318/2020 DATED 15.09.2020 EXHIBIT P7 TRUE COPY OF THE ORDER NO.L.F.T.D.3(B)/75/2015 DATED 14.07.2015.