Kerala State Road Transport Corporation v. Rajan Choyikkandy

W. A. No. 696/2023 ..1.. **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 7[TH] DAY OF JUNE 2023 / 17TH JYAISHTA, 1945** **W.A. NO. 696 OF 2023** **AGAINST THE JUDGMENT DATED 22.8.2022 IN WP(C).NO.26492/2022 OF THE HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS:** - **1 KERALA STATE ROAD TRANSPORT CORPORATION, REP. BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM, PIN – 695023.** - **2 THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM, PIN – 695023.** - **3 THE EXECUTIVE DIRECTOR (ADMINISTRATION), KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM, PIN – 695023.** - **4 THE DEPUTY CHIEF ACCOUNTS OFFICER (PENSION & AUDIT), KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM, PIN – 695023.** - **5 THE FINANCIAL ADVISOR & CHIEF ACCOUNTS OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM, PIN – 695023.** - **6 THE DISTRICT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, KANNUR DEPOT,PIN–670003.** W. A. No. 696/2023 ..2.. **SRI.DEEPU THANKAN, STANDING COUNSEL FOR KSRTC** **ADVS. M/S.UMMUL FIDA, LAKSHMI SREEDHAR, LEKSHMI P. NAIR & NAMITHA K.M.** ## **RESPONDENT/PETITIONER:** **RAJAN CHOYIKKANDY, AGED 61 YEARS, (PPO NO.51780), S/O. KUNHIRAMAN, CHOTHARA VEEDU, NEERVELI P.O., VIA NIRMALAGIRI, KANNUR, PIN – 670701 (DRIVER, KERALA STATE ROAD TRANSPORT CORPORATION, RETIRED ON 31.5.2017 FROM KANNUR DEPOT, PIN-670 003).** **ADV. SRI. K.P.JUSTINE (KARIPAT) ADV. SRI. A. JOSEPH GEORGE (AZHIKKAKATH)** **OTHERS SRI. B. UNNIKRISHNA KAIMAL, SENIOR GOVERNMENT PRESENT: PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W. A. No. 696/2023 ..3.. ## ALEXANDER THOMAS & C. JAYACHANDRAN, JJ. ============================================= W.A. No. 696 of 2023 _(arising out of the impugned judgment dated 22.8.2022 in WP(C) No. 26492/2022)_ ============================================= Dated this the 7[th] day of June, 2023 ## J U D G M E N T ## ALEXANDER THOMAS, J. The afore captioned Writ Appeal is directed against the impugned judgment dated 22.8.2022 rendered by the learned Single Judge disposing of the instant Writ Petition Civil, WP(C).No.26492/2022. The appellants herein are the respondents in the WP(C) and the sole respondent herein is the sole petitioner in the WP(C). 2. Heard Sri.Deepu Thankan, learned Standing Counsel for the Kerala State Road Transport Corporation (KSRTC), appearing for the appellants and Sri.K.P.Justine (Karipat), learned counsel appearing for the sole respondent herein (writ petitioner). 3. The sole respondent herein has filed the instant Writ Petition Civil, WP(C).No.26492/2022, with the following prayers: W. A. No. 696/2023 ..4.. - _“_ - _i. Call for the records leading to the case._ - _ii. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the 2[nd] respondent to refund the illegally recovered amount of Rs.30,620/- from the gratuity paid to the petitioner, within a time frame as may be stipulated by this Hon'ble Court._ - _iii. Declared that no recovery on any account can be effected in the gratuity paid to an employee._ - _iv. Issue such other writ, order or direction as deem fit in the circumstances by this Hon'ble Court.”_ 4. The learned Single Judge, after hearing both sides, has rendered the impugned judgment on 22.8.2022 holding that the withholding of an amount of Rs.30,620/- from the Death-cumRetirement Gratuity (DCRG) account of the writ petitioner by the appellant/employer (KSRTC) is illegal and _ultra vires_ and that, he is entitled for refund of the said withheld amount along with interest thereon at the rate of 8% p.a. from the date on which it became due until it is actually paid. The aforesaid direction in the impugned judgment is under challenge at the instance of the appellant-KSRTC in this intra court appeal, instituted under Sec.5(i) of the Kerala High Court Act, 1958. 5. Both sides have been heard _in extenso_ and we have given our anxious consideration to the same and have also perused the pleadings and materials on record. 6. After hearing both sides, we are of the firm view that W. A. No. 696/2023 ..5.. the ultimate conclusions drawn by the learned Single Judge, regarding the illegality of withholding of the abovesaid amount from the gratuity amount of the writ petitioner, is a reasonable view of the matter and at any rate, is not liable for interdiction on the ground that the same is unreasonable or perverse. However, since no prayer was made in the WP(C) for grant of interest on the delayed payment of the said amount, we feel that the direction to pay interest could be interfered with. 7. A brief recital of the facts would be pertinent. The writ petitioner was an employee of the appellant-KSRTC as a driver and he had retired from service on 31.5.2017. A total gratuity amount of Rs.2,94,253/- was sanctioned by the appellant/employer (KSRTC) in favour of the writ petitioner/employee. However, an amount of Rs.30,620/- was recovered from the gratuity unilaterally by the appellant, while disbursing the gratuity claims on 17.7.2017, on the ground that he received some excess pay consequent to certain pay revisions mentioned in the WP(C). 8. It is common ground that the appellant-KSRTC and the writ petitioner are regulated by the provisions contained in the Kerala Service Rules (Part-III) _(hereinafter called 'Part-III KSR')_ in the W. A. No. 696/2023 ..6.. matter of pensionary claims. Para 5 of Rule 116 of Part-III KSR mandates that the employer-authority should disburse the gratuity ordinarily within a period of one year from the date of retirement of the employee concerned. However, it is further stipulated in Note 3 to Rule 3 of Part-III KSR that liabilities which can be identified without recourse to disciplinary proceedings or judicial proceedings could be quantified and recovered after following the due procedure of summary process and this process could be done by the employer authority concerned within an outer time limit of three years from the date of retirement. 9. It is a too well settled legal proposition and the same does not require the citation of any judicial authority that, while taking recourse to the benefit of Note 3 to Rule 3 of Part-III KSR, the competent employer-authority should necessarily observe a summary procedure to notify the affected pensioner as to his liabilities and to hear him in that summary process on the question of liability and then only finalize liability and only such finalized liability, after such summary process, alone can be recovered from the gratuity. The entire process of concluding the summary process and hearing the employee and recovery from the gratuity, should W. A. No. 696/2023 ..7.. be completed within an outer time limit of three years from the date of retirement of the pensioner concerned. 10. In the instant case, the writ petitioner retired from service on 31.5.2017. The one year time limit therefrom, as envisaged in para 5 of Rule 116 of Part-III KSR had expired on 31.5.2018. The three year statutory outer time limit, envisaged in Note 3 to Rule 3 of Part-III KSR, has expired in the instant case on 31.5.2020. True, it is the case of the KSRTC that they have recovered the said amount of Rs.30,620/- from the DCRG amount of the writ petitioner on 17.7.2017. However, even the due gratuity amount, after such deduction, was paid to the writ petitioner only on 12.6.2018. The appellant-KSRTC has no case whatsoever that the recovery of the said amount was made from the gratuity amount of the writ petitioner after following the abovesaid summary procedure of identifying the liability and giving reasonable opportunity of being heard to the writ petitioner and that too, within an outer time limit of three years from the date of retirement, namely, on or before 31.5.2020. In the instant case, the appellant-KSRTC has unilaterally fixed the abovesaid amount as liability without hearing the writ petitioner and therefore, such W. A. No. 696/2023 ..8.. fixation of liability is null, void and _ultra vires_ and hence, unenforceable. If the three years' period had not expired, then the matter could have been remitted to the appellant/employer for giving opportunity to the pensioner, after observing the summary procedure. Such a course of action is not legally permissible since the three years' outer time limit has expired on 31.5.2020. In view of these aspects, the learned Single Judge is fully right in concluding that the abovesaid recovery from the gratuity amount is illegal and _ultra vires_ . 11. There is yet another perspective in the matter. It is by now well settled, by various rulings of the Apex Court in cases as in the celebrated _**White Washer's**_ case - _**State of Punjab & Ors. v. Rafiq Masih & Ors.** [(2015) 4 SCC 334],_ that, recovery from low-paid employees holding Group C & Group D posts (Class-III & Class-IV), etc., could be interdicted by judicial review courts subject to parameters mentioned therein. Certain modulations have been made thereafter in the decisions as in _**High Court of Punjab & Haryana & Ors. v. Jagdev Singh** [(2016) 14 SCC 267]_ . The learned Single Judge was fully right in holding that the beneficial legal principles emanating from the _**White Washer's**_ W. A. No. 696/2023 ..9.. case would squarely apply to the facts of the instant case. There is no dispute that the writ petitioner was holding Class-III post of Driver in the KSRTC. 12. The learned Standing Counsel of the appellant-KSRTC has a case that since statutory provisions govern the field, the liability could have been fixed and assessed atleast within a period of three years from the date of retirement, even in respect of the employees who may otherwise come within the ambit of the _**White Washer's**_ case. 13. Assuming that being so, in the instant case, the three years' time limit fixed in Note 3 to Rule 3 of Part-III KSR has been expired. So, in any view of the matter, the learned Single Judge was fully right in holding that the impugned recovery of Rs.30,620/from the total gratuity amount of the writ petitioner was illegal and _ultra vires_ . 14. However, it is to be noted that there is no prayer in the Writ Petition for grant of interest. The learned Single Judge has granted interest on the delayed payment of the said amount 0f Rs.30,620/- at the rate of 8% from the date on which the amount became due, _i.e._ from the date of retirement (31.5.2017), till the W. A. No. 696/2023 ..10.. date of actual payment yet to be made. Therefore, the said directions would require interdiction. However, we note that ordinarily, if there is any delay on the part of the employee to approach the Court, then the relief would be moulded in such a manner that the interest could be restricted for a period of three years from the date of institution of the litigative proceedings. In the instant case, the writ petition has been filed on 8.8.2022. Hence, the writ petitioner could have pleaded for grant of interest on the delayed payment atleast for a period of three years prior to 8.8.2022, _i.e._ from 9.8.2019 onwards up to the date of actual payment. No such prayer is made in the Writ Petition. Therefore, in the absence of such a prayer in the WP(C), we are persuaded by the appellant to make a small modification of the impugned judgment. Accordingly, it is ordered that the direction to pay interest will stand vacated. However, the abovesaid amount of Rs.30,620/- shall be immediately disbursed to the appellant within 2 weeks from the date of receipt of a copy of this judgment, failing which the said amount will carry interest at the rate of 6% p.a. from 9.8.2019 up to the date of actual payment. 15. The directions and orders of the learned Single Judge W. A. No. 696/2023 ..11.. in the impugned judgment will stand modified to the limited extent, as above. No other orders and directions are called for. With these observations and directions, the above Writ Appeal will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE Sd/- C. JAYACHANDRAN, JUDGE MMG