K. Alikutty v University of Calicut and others

# **8IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL FRIDAY, THE 9[TH] DAY OF JULY 2021 / 18TH ASHADHA, 1943 WP(C) NO. 2905 OF 2013** ## **PETITIONERS:** 1 K.ALIKUTTY UNIVERSITY OF CALICUT, THENHIPALAM, MALAPPURAM RESIDING AT DEVANKULANGARA VEEDU, PALLIKKAL, MALAPPURAM. 2 V.KESVAN PUMP OPERATOR (RETIRED) UNIVERSITY OF CALICUT, THENHIPALA, MALAPPURAM RESIDING AT VARNANA, KOHINOOR, THENHIPALAM, MALAPPURAM. 3 T.ALAVIKUTTY PUMP OPERATOR (RETIRED), UNIVERSITY OF CALICUT, THENHIPALAM, MALAPPURAM RESIDING AT CHATTUPARAKKAL VEEDU, THENHIPALAM P.O, MALAPPURAM. 4 M.VICHITRAN PUMP OPERATOR (RETIRED), UNIVERSITY OF CALICUT, THENHIPALAM, MALAPPURAM RESIDING AT THAYYIL PARAMBIL HOUSE, EDAKKAD P.O., KOZHIKODE. BY ADVS. T.B.HOOD AMAL KASHA M.ISHA ## **RESPONDENTS:** 1 UNIVERSITY OF CALICUT REP. BY ITS REGISTRAR, THENHIPALAM, MALAPPURAM-673 635 2 THE FINANCE OFFICER UNIVERSITY OF CALICUT THENHIPALAM, MALAPPURAM-673635 **WP(C) NO. 2905 OF 2013** **2** 3 THE JOINT DIRECTOR OF LOCAL FUND AUDIT UNIVERSITY OF CALICUT, THENHIPALAM, MALAPPURAM-673 635 GP SRI B HARISH KUMAR , SRI P C SASIDHARAN SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 2905 OF 2013** **3** ## **JUDGMENT** Petitioners Nos.1 to 3 retired from service of the University as pump operator on 31.03.2010 and petitioner No.4 on 31.03.2011. Challenge in the present writ petition has been laid to Exts.P1, P1(a), P1(b) and P1(c) whereby the University in the year 2011 deducted the amount from the Death-CumRetirement-Gratuity (DCRG) on account of audit objection raised by Joint Director of Local Audit Fund. 2. The facts leading to the filing of the present writ petition are that owing to Ext.P1 series the sums of Rs.41,362/-, Rs.50,758/-, Rs.59,923/- and Rs.53,095/- respectively have been allegedly paid to the petitioners in excess as duty allowance and Rs.5,850/- as House Rent Allowance (HRA). Sri.T.B.Hood learned counsel appearing on behalf of the petitioners submits that pay and allowances were reckoned with reference to the previous pay revision order, but, however, Government Order dated 26.02.2011 was implemented by the University on 27.04.2011 as evident from Ext.P2. The pay revision, therefore, all intents and purposes was with effect from 01.07.2009. But the same benefit **WP(C) NO. 2905 OF 2013** **4** was not granted to the petitioners owing to Ext.P1. Since the audit objection was raised by the respondent No.3 way back in 2002 with regard to the payment of extra duty allowance. University constituted a committee and found that the recoveries of extra duty allowance have been effected from DCRG, but, a resolution in the proceedings before the pension Adalath was taken for waiving the audit objection vide Ext.P3. However, during the interregnum even the respondents had not implemented the 1992 pay revision and allowances, necessitating the petitioners to approach this Court vide O.P No.14347/1999. The aforementioned OP was allowed and in pursuance to the aforementioned order University of Calicut vide order dated 25.02.2008 revised the 2[nd] pay revision instead of 1400-2300 to 1520-2660. Despite having undertaken to waive the audit objection, the matter was placed before the syndicate of the University and in the meeting dated 21.08.2010 syndicate considered the report of the committee, constituted to study the audit objection with regard to the modification of fixation of pay and found that the objection raised by the Deputy Director of Local Fund be overruled. This fact is evident from order dated **WP(C) NO. 2905 OF 2013** **5** 18.09.2010 (Ext.P5). On 29.01.2013 respondents passed Ext.P7 order by noticing the audit objection for recovery of the amount from the petitioner. He submitted that once the decision was taken vide Ext.P5 way back in 2010 it is not understood what prevailed in the University to recall the order of the syndicate resulting into order of the Assistant Registrar Ext.P7. Aggrieved of the same petitioners have approached this Court. To buttress the argument the _ratio decedendi_ culled out by Supreme Court in ## _**State of Punjab v. Rafiq Masih (White Washer) and Others**_ [2015 (4) SCC 334] has been relied, to contend, that the objection was taken way back in 2002 whereas the petitioners retired in 2010 and 2011, the recovery was emphatically time barred. There was no fault of the petitioners that they discharged their duties even on public holidays and therefore the parameters laid down in the judgment aforementioned are squarely applicable and the recovery so affected is required to be returned along with interest and even extension of full benefits of 2009 pay revision have been deprived of which may be also ordered to be released along with any interest. **WP(C) NO. 2905 OF 2013** **6** 3. Per contra, learned counsel appearing on behalf of the University supported the action of the recovery on the ground of audit objection. The factum of the grant of pay revision order of 1992 pay revision as per Ext.P5 has also not been denied but the impugned decision was reiterated, on the ground that the syndicate in the meeting held on 10.03.2011 considered the matter of reviewing the audit objection and ultimately in 2012. The University had no other option except to comply with the audit objection and it is on that account recovery was affected. A statement has been filed by the Local Fund Audit, University of Calicut and in paragraph 4 thereof it has been stated that job pattern attached to the post of pump operator was for first, second and third shift for seven days whereas 22[nd] day was marked as compensatory leave and for the balance days of the 4[th] week the person concerned was posted for maintenance. Though by their natural duty they were bound to work even on public holidays but were paid extra duty allowances at the rate of their salary for their holiday duty. But the respondent had disallowed such illegal payments and incorporated in the Audit Report. Even the University of Calicut is situated at Thenhipalam **WP(C) NO. 2905 OF 2013** **7** thus the staff was not eligible for HRA admissible in the Corporation areas. Hence that was also disallowed. Though the University granted higher pay but owing to audit objection, it is not released. 4. I have heard the learned counsel for the parties and appraised paper book. 5. The facts aforementioned regarding recovery of excess duty allowance and revision owing to the audit objection, order Ext.P2 whereby the University had granted the benefit of 2011 pay revision with effect from 01.07.2009 are not in dispute but despite that as per the counter, on account of audit objection, it is being disputed. It is most intriguing the said objection is being taken despite the fact that the petitioners, by this Court have been granted the benefit of 1992 pay revision as evident from the order Ext.P4 dated 25.02.2008. There had been a spate of litigations for recovery of the amount based upon audit objection. The Supreme Court in State of _**State of Punjab v. Rafiq Masih (supra)**_ and after pondering of the matter and Rules applicable laid in paragraph 18 as following: **WP(C) NO. 2905 OF 2013** **8** “18. It is not possible to postulate all situations or hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference summarise the following few situations, wherein recoveries by the employers, would be impermissible n law. (i) Recovery from the employee 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 the equitable balance of the employer's right to recover” Petitioners are covered under the aforementioned parameters as they retired in the year 2010 and 2011 respectively whereas the audit objection was taken in 2002. Respondent University despite having debated in their favour, recovered the amount for the reason best known. It appears that there was no coordination between the administrative department **WP(C) NO. 2905 OF 2013** **9** and finance department which raised the audit objection. It is also matter of fact that the petitioners had to approach this Court for grant of benefits of pay revision allowances as granted way back in the year 1992 but as far as pay revision of 2011 is concerned the said benefit has not been granted to the petitioners alone despite being implemented as evident from Ext.P2. In view of the reasons stated above, Ext.P1 series is hereby quashed the recovery effected from the petitioners is ordered to be refunded back to the petitioners along with interest at the rate of 6% per annum. Respondents are also directed to grant the benefit of pay and allowances as granted by 2011 pay revision implemented in the University with effect from 01.7.2009 along with the interest of 6%, after calculating the terminal benefits. Let this exercise be undertaken within a period of three months from the date of receipt of this judgment. **Sd/AMIT RAWAL JUDGE** nak **WP(C) NO. 2905 OF 2013** **10** ## **APPENDIX OF WP(C) 2905/2013** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER ISSUED BY THE UNIVERSITY TO THE 1ST PETITIONER. Exhibit P1A TRUE COPY OF THE ORDER ISSUED BY THE UNIVERSITY TO THE 2ND PETITIONER. Exhibit P1B TRUE COPY OF THE ORDER ISSUED BY THE UNIVERSITY TO THE 3RD PETITIONER. Exhibit P1C TRUE COPY OF THE ORDER ISSUED BY THE UNIVERSITY TO THE 4TH PETITIONER. Exhibit P2 TRUE COPY OF THE ORDER OF THE UNIVERSITY DATED 27.04.2011. Exhibit P3 TRUE COPY OF THE ORDER ISSUED BY THE UNIVERSITY DATED 27.04.2011. Exhibit P4 TRUE COPY OF THE ORDER IMPLEMENTING THE PAY REVISION (1992 PAY REVISION) DATED 25.02.2008. Exhibit P5 TRUE COPY OF THE ORDER ISSUED BY THE UNIVERSITY DATED 18.09.2010 OVER RULING THE OBJECTIONS TAKEN AGAINST THE PETITIONERS. Exhibit P6 TRUE COPY OF THE REPRESENTATION BEFORE THE VICE CHANCELLOR FOR REDRESSAL OF THE GRIEVANCES OF THE PETITIONERS. Exhibit P7 TRUE COPY OF THE ORDER ISSUED BY THE UNIVERSITY DATED 29.01.2013. Exhibit P8 TRUE COPY OF THE ORDER ISSUED BY THE UNIVERSITY DATED 04.02.2013. Exhibit P9 TRUE COPY OF THE ORDER ISSUED BY THE **WP(C) NO. 2905 OF 2013** **11** UNIVERSITY DATED 04.02.2013. Exhibit P10 TRUE COPY OF THE ORDER ISSUED BY THE UNIVERSITY DATED 04.02.2013. Exhibit P11 TRUE COPY OF THE ORDER ISSUED IN FAVOUR OF SRI.P.T.JOY DATED 27.12.2012. Exhibit P12 TRUE COPY OF THE JUDGMENT IN WPC NO.24616/2011. RESPONDENT ANNEXURE Annexure R3(A) TRUE COPY OF THE GUIDELINES DATED 07.11.1997.