K.A. Thresiamma v. Kerala Water Authority

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 3RD DAY OF JULY 2013/12TH ASHADHA, 1935** ## **WP(C).No. 4234 of 2010 (D)** **---------------------------------------** **PETITIONER(S):** **--------------------------** **K.A.THRESIAMMA, AGED 52 YEARS, W/O.SRI JOSE P.C., DRAFTSMAN GRADE I (HG), P.H.IPD SECTION, KERALA WATER AUTHORITY, THRISSUR, RESIDING AT THANICKAL POOVATHINGAL HOUSE, P.O.CHETTUPUZHA, THRISSUR DISTRICT.** ## **BY ADV. SRI.M.R.GOPALAKRISHNAN NAIR** **RESPONDENT(S):** **----------------------------** **THE KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, THIRUVANANTHAPURAM.** **R1 BY ADV. SRI.MILLU DANDAPANI, SC, KERALA WATER AUTHORITY BY SRI.C.UNNIKRISHNAN, SC, KWA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **PJ** ## **WP(C).No. 4234 of 2010 (D)** ## **---------------------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS** **-----------------------------------** - **P1: COPY OF RELEVANT PAGE OF AUDIT OBJECTION RELATING TO THE PETITIONER.** - **P2: COPY OF THE LETTER NO.KWA/HO/E4/1641/2005 DATED 30/11/2005.** - **P3: COPY OF THE ORDER NO.IPD/EE/PDK/EI-85/96 DATED 24/10/2005.** - **P4: COPY OF THE ORDER NO.IPD/EE/PKD/E1-40-96 DATED 15/2/2007.** - **P5: COPY OF THE CIRCULAR NO.KWA/HO/E4/16417/05 DATED 28/7/2009.** - **P6: COPY OF ORDER NO.KWA/HO/E/4/16417/05 DATED 6/1/2010.** - **P7: COPY OF LETTRER NO.KWA/WSP/PKD/E1-82/98 DATED 29/1/2010.** - **P8: COPY OF JUDGMENT DATED 25/8/2009 IN WPC.NO.19688 OF 2007 OF THIS HONOURABLE COURT.** ## **RESPONDENTS EXHIBITS** **--------------------------------------** **NIL.** **/ TRUE COPY /** **P.S.TO JUDGE** **PJ** ## **A.M.SHAFFIQUE, J** ## *** * * * * * * * * * * * *** W.P.C.No.4234 of 2010 ---------------------------------------- Dated this the 3[rd] day of July 2013 ## **J U D G M E N T** The petitioner has retired from service of Kerala Water Authority (for short 'KWA'). She joined service on provisional basis in the grade of Draftsman Grade II on 10/11/1982 and was regularised on 19/09/1990. She was provided the first higher grade on completion of ten years of service on 10/11/1992 in the scale of pay of Rs.1050-1830 and second higher grade on 10/11/2000 on completion of 18 years of service and third higher grade on 10/11/2005 on completion of 23 years of service. 2. This writ petition came to be filed when an audit objection was raised inter alia stating that the petitioner was not entitled for the scale of pay of Rs.6935-11460 sanctioned on 10/11/2000 as she did not have the requisite qualification and she had not worked as Draftsman Grade I W.P.C.No.4234/10 2 for a period of two years. However, KWA as per Ext.P2, having taken into consideration the representation of the staff association in regard to the audit objection, informed that the recovery of excess pay recommended in such cases will be done only on receipt of instruction from the Government in the matter. Subsequently by Ext.P4 order dated 15/12/2007 the petitioner was given higher pay scale of Rs.6935-11460 with effect from 19/05/2005. By Ext.P5 communication dated 28/07/2009 the Managing Director of KWA had informed all officers to take steps to recover the excess amount drawn and disbursed by way of erroneous pay scale given to the incumbents while sanctioning the time bound higher grade. Ext.P6 is another letter in that regard. 3. The petitioner apprehends that steps may be taken to recover the amount drawn by her. According to her, she had already retired from service and if any recovery is effected, she will be put to irreparable loss. Hence the W.P.C.No.4234/10 3 petitioner challenges Exts.P6 and P7 and also seeks a declaration to get the scale of pay of Rs.6935 - 11460 as per higher grade on completion of 18 years of service on 10/11/2000. 4. The learned counsel for the respondent/KWA would submit that though the audit objection came into force much earlier, no action was taken by the petitioner to challenge the same. That apart, Ext.P4 order was issued as early as on 15/02/2007. The petitioner has not challenged the said order within a reasonable time and therefore it is not open for the petitioner to challenge fixation of the pay scale of Rs.6935 - 11460 as per time bound higher grade with effect from 11/06/2005. 5. It is not in dispute that if any amount is drawn exceeding the actual entitlement, the Government officer is bound to refund the same, even if the amount is paid by way of mistake of a wrong fixation of time bound higher grade to the petitioner. The learned counsel for the respondent relied W.P.C.No.4234/10 4 upon the judgment of the Supreme Court in **Chandi Prasad Uniyal v. State of Uttarakhand** [ AIR 2012 SC 2951] reference is made to paragraph 16 and 17 of the said judgment which reads as under: _“_ _**16** .We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without_ W.P.C.No.4234/10 5 _any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment._ _**17** . We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (2009 AIR SCW 1871) (supra) and in Col. B.J. Akkara (Retd.) case (2006 AIR SCW 5252) (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered.-"_ 6. The proposition as held by the Supreme Court in the aforesaid judgment is not in dispute as the petitioner cannot have a legal right to claim that the amount wrongly drawn cannot be recovered. The learned counsel for the petitioner however submits that since the petitioner had W.P.C.No.4234/10 6 retired from service and if any recovery is made from her at this point of time, it will put her to serious injustice. Reference is also made to Ext.P2 wherein instructions from the Government was expected for recovering the excess payment made to the officers. 7. Having regard to the aforesaid factual circumstances and on account of the fact that the petitioner had retired from service, I am of the view that if recovery of a huge amount is sought to be made from a pensioner, it will definitely cause substantial loss and injury to the petitioner. Hence I am of the view that though the petitioner does not have a legal right to say that no recovery should be made, having regard to the plight of the petitioner and the fact that no steps had been taken by the respondent authority to recover the amount while she was in service, I am of the view that any excess amount drawn by the petitioner until it has been revised shall not be recovered back. W.P.C.No.4234/10 7 In the result, the writ petition is disposed of as follows: i) Challenge to Exts.P6 and P7 is negatived. ii) However, it is made clear that the respondent shall not recover the amounts drawn by the petitioner on the basis of wrong fixation of the scale of pay. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.4234/10 8 W.P.C.No.4234/10 9