K. P. Poulose v. Union of India and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE 20TH DAY OF MAY 2013/30TH VAISAKHA 1935 WA.No. 2238 of 2006 ( ) IN WP(C).1685/2006 -------------------------------------------AGAINST THE JUDGMENT IN WP(C) 1685/2006 DATED 13-09-2006 ## APPELLANT(S)/APPELLANT/PETITIONER: -------------------------------------------- K.P.POULOSE AGED 55 YEARS, SUBORDINATE STAFF UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE THRISSUR, RESIDING AT KURIAMPARAMBIL HOUSE KOZHUKULLY.P.O., MOORKANIKKARA, THRISSUR DIST. BY ADV. SRI.M.P.KRISHNAN NAIR ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. UNION OF INDIA THROUGH SECRETARY, MINISTRY OF FINANCE DEPARTMENT OF ECONOMIC AFFAIRS, INSURANCE DIVISION NEW DELHI. 2. GENERAL INSURANCE CORPORATION OF INDIA LTD., RE.BY ITS CHAIRMAN-CUM-MANAGING DIRECTOR INDUSTRIAL ASSURANCE BUILDING, CHURCH GATE MUMBAI - 400 023. 3. UNITED INDIA INSURANCE CO.LTD., REP.BY ITS CHAIRMAN-CUM-MANAGING DIRECTOR, 27 WHITES ROAD, CHENNAI - 600 014. 4. THE CHAIRMAN, G.I.P.S.A., NEW INDIA CENTRE, 4TH FLOOR, 17-A COOPERAGE ROAD, MUMBAI - 39. 5. THE REGIONAL MANAGER, UNITED INDIA INSURANCE CO.LTD., REGIONAL OFFICE KOCHI - 2. 6. THE MANAGER, UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE THRISSUR. R2 to,R6 BY ADV. SRI.P.K.MANOJKUMAR R1 BY SRI.P. PARAMESWARAN NAIR ASG THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MANJULA CHELLUR,C.J. & K.VINOD CHANDRAN, J.** **= = = = = = = = = = = = = = = = W.A.No.2238 of 2006 = = = = = = = = = = = = = = = = = = = = = Dated this the 20th day of May, 2013** ## **JUDGMENT** ## **Manjula Chellur,CJ** Appellant herein is an ex-service man who secured appointment with the 3[rd] respondent-Insurance Company as subordinate staff with effect from 25.02.1991. The dispute revolves around an issue whether the appellant who joined the service of the company after 01.01.1988 subsequent to his discharge from defence service was entitled to get the benefit of fitment as per paragraph 3.8 of a particular circular in question. 2. It is not in dispute that the company, on the submission of the appellant's application seeking fitment benefit, obliged him and re-calculated his salary as per paragraph 3.8, though he was not entitled for the same. The said amount came to be recovered from 2003 onwards. The present appellant had approached this Court only in the year 2006. As a matter of **W.A.No.2238 of 2006** **2** fact, along with him, other 8 subordinate staff of the 3[rd] respondent Company approached this Court much prior to him and obtained an order of stay of the recovery. As there was an interim order in favour of the said 8 employees of the Company, though the appellant did not approach this Court, the company did not recover the excess amount paid to him from his monthly salary. When O.P.No.12010/1996 was heard and disposed of by Ext.P2 judgment, the learned Single Judge was of the opinion, there was no justification in the claim of the writ petitioners and the recovery implemented by the respondent-company was justified and therefore the learned Single Judge did not interfere with the said recovery. Ultimately, the stay order in favour of the writ petitioners also came to be vacated. The recovery continued till the retirement of the employees. Once the employees retired, the balance amount paid as excess salary came to be recovered from the employees' retirement benefits. Only the present appellant approached this Court and none of the other staff approached this Court. 3. The learned Single Judge, after referring to the law applicable at that point of time and facts placed before him, was **W.A.No.2238 of 2006** **3** of the opinion, the company respondent did initiate effective steps for recovery immediately on detecting the mistake. But however, they could not continue the recovery because of the intervention of the Court. Ultimately, having regard to the factual situation and also the decision of the Division Bench of this Court in **United India Insurance Co.vs. Roy** (2005(2) KLT 63) it is opined that the respondent-employer should not be put to financial burden and there is no equity in denying their right to recover excess payment made to the employees. However, the learned Single Judge said, if the balance amount to be recovered is a substantial amount, it shall be recovered from the petitioner only in easy instalments. This judgment came to be made on 13.09.2006. 4. Apparently, the appellant herein retired in 2009 and it is not the case of the appellant that entire salary of every month came to be recovered during his service. They recovered easy instalments till the date of retirement from the salary payable to the appellant, that is, `500/- per month. When he retired in 2009 the balance amount came to be recovered in lump sum which comes to `2,21,464/-. As noticed from records, the appellant **W.A.No.2238 of 2006** **4** never challenged the said recovery either by filing a writ petition or filing a contempt if he thought the company was disobeying the directions of this Court. He did not even file an application in writ appeal after preferring the appeal that lump sum should not be recovered from him. The main case of the appellant is that if the amount paid in excess of the actual salary payable by the employer and in the absence of any part played by the employee for such wrong payment, the employee should not be put to difficulties by ordering recovery. This is the only ground taken by the appellant as a defence throughout the writ petition and also in the writ appeal. The appellant places reliance on **Syed Abdul Qadir vs. State of Bihar** [(2009)3 SCC 475] to contend that in the absence of any role played by the present appellant persuading the employer to recalculate the salary wrongly, he should not be put to financial burden. 5. Learned counsel appearing for the respondents brings to our notice another judgment of the Apex Court in **Chandi Prasad Uniyal and others vs. State of Uttarakhand and others** (2012)8 SCC 117) to contend that the judgment of three Judges of the Apex Court in **Syed Abdul Qadi** r's case supra **W.A.No.2238 of 2006** **5** was distinguished giving reasoning at paragraph 12 of the judgment. According to him the Apex Court in the later judgment of 2012 made an observation as to whom the earlier judgment of 2009 of the Apex Court is applicable and to which of the employees the later judgment is applicable. Paragraph 12 of 2012 judgment reads as under:- “Later, a three-Judge Bench in Syed Abdul Qadir case after referring to Shyam Babu Verma, Col.B.J.Akkara etc. restrained the department from recovery of excess amount paid, but held as follows: (Syed Abdul Qadir case SCC pp 491-92, para 59) “59 Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. _Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made_ .” (emphasis added) **W.A.No.2238 of 2006** **6** We may point out that in Syed Abdul Qadir case such a direction was given keeping in view the peculiar facts and circumstances of that case since the beneficiaries had either retired or were on the verge of retirement and so as to avoid any hardship to them. 6. The Honourable Judges of the Apex Court in the 2012 judgment after observing the law laid down in **Syed Abdul Qadir's** case (supra) opined that in Syed Abdul Qadir's case a direction not to recover excess amounts paid to the employee was on the ground that employees did not have a role to play for such excess payment of employees therein were either retired officers or on the verge of retirement. This is the factual difference that persuaded the Apex Court in 2012 judgment to distinguish the judgment of 2009 (three Judges). 7. In the present case when we look at the factual situation, the appellant never approached this Court immediately after the commencement of recovery in 2003. He approached this Court only in 2006. Order of recovery was never challenged by this appellant. After retirement, when the excess amount came to be deducted from retirement benefits, he did not become alert and did not even raise his little finger. In that view of the matter, should we look back and assess the hardship so **7** ## **W.A.No.2238 of 2006** complained by the appellant now, after a lapse of 5 years? It is not even his case that his pensionary benefits are affected in any manner. He is paid his pension in full. The entire situation arose when this appellant was still in service and had six years more service. In that view of the matter, it was not a situation where the appellant had either retired or was on the verge of retirement as observed in the later judgment of the Apex Court in 2012 referred supra. It is also admitted that while he was in employment recovery was made only in instalments. In that view of the matter we are of the opinion, no good grounds are made out by learned counsel for the appellant to persuade us to take a different view than that of the learned Single Judge. Accordingly, this writ appeal is dismissed. ## **MANJULA CHELLUR, CHIEF JUSTICE** **K.VINOD CHANDRAN, JUDGE** sj 21/5