Joseph Augustine v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **THURSDAY, THE 8[TH] DAY OF JULY 2021 / 17TH ASHADHA, 1943** ## **WP(C) NO. 9060 OF 2020** ## **PETITIONER:** JOSEPH AUGUSTINE, KUNNAMKOTT HOUSE, NEDIYASALA P.O., THODUPUZHA - 685 584. BY ADVS. A.JAYASANKAR SRI.MANU GOVIND 1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001. 2 THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM - 695 035. 3 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM 682 011. 4 THE PRINCIPAL, NEWMAN COLLEGE, THODUPUZHA - 685 585. 5 ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM - 695 039. 6 SUB TREASURY OFFICER, THODUPUZHA - 685 585. BY ADVS. SRI.MATHEW B. KURIAN SRI.K.T.THOMAS ## **RESPONDENTS:** GP SRI B HARISH KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 9060 OF 2020** **2** ## **JUDGMENT** Challenge has been laid to the orders Exts.P12, P13 and P14 dated 29.01.2016, 14.12.2018 and 20.01.2020 respectively whereby demand has been raised for recovering the amount ie., the allowances paid to the petitioner when he was on deputation under the chapter Faculty Improvement Programme. The facts leading to the aforementioned writ petition are that petitioner joined in St.Dominic College, Kanjirappilly, an aided private college on 16.09.1982 as Junior Lecturer in History and transferred to the College ie., the 4[th] respondent while working as Selection Grade Lecturer on 31.03.2010. 2. While in service he underwent deputation under Faculty Improvement Programme (FIP) from 01.08.1994 to 31.07.1995 and was paid salary for the said period but unfortunately was not able to complete the Ph.D programme. As per the Rules petitioner was expected to return the salary and allowances for the period he availed deputation under the aforementioned scheme FIP. 3. On attaining the age of retirement petitioner addressed communication dated 25.06.2010 (Ext.P2) to Director **WP(C) NO. 9060 OF 2020** **3** of Collegiate Education - respondent No.2 and expressed his willingness to refund the amount for deduction from outstanding gratuity. Vide Ext.P3 Principal of the college communicated to the Director of Collegiate the exact amount of the liability which the petitioner had incurred i.e.,an amount of Rs.91387/- details of which is also enclosed and attached as Ext.P3(2). Thereafter numerous requests were sent but the respondent No.2 instead of acceding to the request, had been communicating with the Principal for ascertaining the figure i.e., liability of petitioner. 4. Sri.Jayasankar, learned counsel appearing on behalf of the petitioner submitted, that once the college had already apportioned the liability there was no need for respondent No.2 to unnecessarily communicate with the Principal and delay the disbursement of the retiral benefit after the adjustment of amount due. There is no communication of the exact demand raised by the respondent No.2 along with the interest for the same though for the first time vide the communication dated 17.03.2015 Ext.R2(a) substantial amount is sought to be recovered along with 18% interest. The ratio culled out by Division Bench judgment of this Court, relied by the respondents **WP(C) NO. 9060 OF 2020** **4** ie., _**Premasukumar v. Secretary, Higher Education Department**_ [2019 (3) KLT 912] would not be applicable as the petitioner cannot be burdened with the payment of the interest as request was submitted long ago but no action was taken. Even now the receipt, emphatically, relied qua the service of the demand Ext.R2(a) is also of 17.3.2015 meaning thereby that the demand was kept in the office of the respondent No.2 for a period of three years and allegedly communicated to the petitioner only in 2018. In such circumstances the Government cannot be unduly enriched by demanding the interest at the rate of 18%. 5. On the other hand, the learned Government Pleader opposed the aforementioned prayer and submitted that it is a matter of record that the petitioner did not complete the Ph.D by not submitting the thesis during the period of deputation, as per the provisions of the Rules applicable, the amount and salary received by any incumbent who have not undergone the FIT is required to be returned, i.e., as per the import of the judgment referred above. Even in cited judgment also the demand was raised along with 18% interest, thus urged this Court for dismissal of the writ petition. **WP(C) NO. 9060 OF 2020** **5** 6. I have heard the learned counsel for the parties and appraised the paper book. 7. This Court while exercising the power of judicial review under Article 226 of the Constitution of India though has to examine the veracity of the order as well as strike equities between the parties. No doubt an employee who has been on deputation and received the lump-sum wages but failed to complete the thesis is required to return the amount along with the interest but the fact of the matter is the period as referred to above, during the period the petitioner remained on deputation could not submit the thesis and retired five years thereafter ie., on 31.03.2010 and immediately vide Ext.P2 ie., a communication dated 25.06.2010, acknowledged to pay the amount outstanding and whatever the interest thereon. The College immediately communicated to the 2[nd] respondent the outstanding amount along with the interest thereof. Contents of letter Ext.P3 is extracted herein below: With reference to your letter cited above, I am to inform you that Sri.Joseph Augustine, Sel. Gr. Lecturer in History Department of this college had undergone deputation under FIP from 1/08/1994 to 31/7/1995. But he had not completed his ph.D programme. He has incurred a liability **WP(C) NO. 9060 OF 2020** **6** of Rs.91387/- towards the government. Detailed statement also is enclosed herewith. He was retired from service on 31.3.2010. 8. Thereafter vide Ext.P4 onwards the respondent No.2 has, for the reason best known had been communicating for determining the amount which was already communicated as indicated above and ultimately raised the demand in 2018 vide Ext.P13, on the basis of the decision dated 17.03.2015 (R2(a)). This Court would not go to the realm of disputed question of fact with regard to the receipt of the communication Ext.R2(a) dated 17.03.2015 whereby the demand has been raised along with the interest @ 18%. Assuming for an argument, do not admit that the demand was communicated, the acknowledgement thereof reveals that the said demand was communicated only after three years ie., in the month of December, 2018 as evident from Ext.R2(b). This Court has been prevented from any explanation as to how and in what manner respondent No.2 withheld the order of 17.03.2015 for a period of three years. Acknowledgment Ext.R2(b) correlates the issuance of impugned decision dated 14.12.2018 (Ext.P13). The balance in this case would not tilt in **WP(C) NO. 9060 OF 2020** **7** favour of the respondents in justifying the demand of interest for the period the petitioner remained on deputation. At the best he is entitled to pay admissible/permissible interest for the period from 01.08.1994 to 31.07.1995 but no demand till his date of retirement was made and on retirement had volunteered, for the sake of repetition, to pay back. 9. No doubt this Court in cited judgment had in respect of a matter where a Selection Grade Lecturer had also undertaken a Faculty Improvement Programme on 01.06.2005 to 31.03.2007 but did not acquire Ph.D within the stipulated period or extended time and much after the retirement from the service on 31.03.2010, proceedings were initiated for recovery of Rs.3,70, 590/- and the liability was fixed. However, the entire judgment do not reveal that when the proceedings of recovery were initiated and amount assessed. On the contrary in the instant case, it is evident that respondent No.2 from 2011 onwards till 2014 have unnecessarily been communicating with the respondent No.2 for asserting the determination of the amount which was already concluded. In such circumstances, I do not justify the demand of interest @ 18%. **WP(C) NO. 9060 OF 2020** **8** Accordingly, the impugned order is quashed to the extent of demand of interest @ of 18%. Respondents are directed to release the retiral benefits after deducting the amount of Rs.91,000/- an odd amount as reflected in Ext.P3. This writ petition is allowed with the aforementioned direction. **Sd/-** **AMIT RAWAL JUDGE** nak **WP(C) NO. 9060 OF 2020** **9** ## **APPENDIX OF WP(C) 9060/2020** PETITIONER ANNEXURE |EXHIBIT P1|TRUE COPY OF THE ORDER DATED 11/06/2010| |---|---| ||ISSUED BY THE 5TH RESPONDENT.| |EXHIBIT P2|TRUE COPY OF THE APPLICATION DATED| ||25/06/2010 SUBMITTED BY THE PETITIONER| ||BEFORE THE 2ND RESPONDENT.| |EXHIBIT P3|TRUE COPY OF THE REPLY DATED 15/10/2011| ||ALONG WITH THE ANNEXURE SENT BY THE 4TH| ||RESPONDENT.| |EXHIBIT P4|TRUE COPY OF THE LETTER FROM THE 3RD| ||RESPONDENT TO THE 2ND RESPONDENT DATED| ||24/12/2011.| |EXHIBIT P5|TRUE COPY OF THE LETTER DATED| ||15/10/2012 PREFERRED BY THE PETITIONER| ||TO THE 2ND RESPONDENT.| |EXHIBIT P6|COPY OF THE LETTER DATED 14/11/2012| ||PREFERRED BY THE 2ND RESPONDENT.| |EXHIBIT P7|TRUE COPY OF THE LETTER| ||NO.PR2101051249/P-3/3/1513189473 DATED| ||26/04/2013 FROM THE 5TH RESPONDENT| ||ALONG WITH ITS RETYPED COPY.| |EXHIBIT P8|TRUE COPY OF THE LETTER DATED| ||14/05/2013 PREFERRED BY THE 2ND| ||RESPONDENT.| |EXHIBIT P9|TRUE COPY OF THE LETTER DATED| ||03/03/2014 PREFERRED BY THE 2ND| ||RESPONDENT.| |EXHIBIT P10|TRUE COPY THE LETTER DATED 18/06/2014| ||PREFERRED BY THE 2ND RESPONDENT.| **WP(C) NO. 9060 OF 2020** **10** EXHIBIT P11 TRUE COPY THE LETTER DATED 14/08/2014 PREFERRED BY THE 2ND RESPONDENT. EXHIBIT P12 TRUE COPY OF THE LETTER DATED 29/01/2016 FROM THE OFFICE OF THE 2ND RESPONDENT. EXHIBIT P13 TRUE COPY OF THE NOTICE DATED 14/12/2018 ISSUED TO THE PETITIONER. EXHIBIT P14 TRUE COPY OF THE NOTICE DATED 20/01/2020 FROM THE OFFICE OF THE 6TH RESPONDENT. RESPONDENTS ANNEXURE EXHIBIT R2(A) TRUE COPY OF LETTER DATED 17.03.2015 ALONG WITH LETTER DATED 10.04.2015 EXHIBIT R2(B) TRUE COPY OF RELEVANT PAGE OF DISPATCH REGISTER TO SHOW THT EXHIBIT R2(A)