M. J. Paulose v. Vazhathoppu Service Co-operative Bank Ltd and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 12[TH] DAY OF DECEMBER 2022 / 21ST AGRAHAYANA, 1944** ## **WP(C) NO. 18144 OF 2014** ## **PETITIONER:** M.J.PAULOSE, BILL COLLECTOR(RETIRED)VAZHATHOPPU SERVICE CO-OPERATAIVE BANK LTD NO E 202, R/A.MOOLEKKARAYIL HOUSE, THADIYAMPADU P O, PEPPARA, IDUKKI DIST SRI.P.V.BABY SRI.A.N.SANTHOSH 1 VAZHATHOPPU SERVICE CO-OPERATIVE BANK LTD NO. E.202 THADIYAMPADU P O, PEPPARA, IDUKKI DIST, PIN-685602, REP BY ITS SECRETARY 2 THE BOARD OF MANAGEMENT, VAZHATHOPPU SERVICE COOPERATIVE BANK LTD NO E 202, THADIYAMPADU P O, PEPPARA , IDUKKI DIST, PIN-685602,REP BY ITS PRESIDENT 3 ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(G) THODUPUZHA - 685584 4 JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(G) IDUKKI-685603 SRI.P.C.SASIDHARAN – SC. SRI. T S JIBU - GP ## **RESPONDENTS:** THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 18144 OF 2014 2 ## **JUDGMENT** The petitioner says that he retired from the services of the first respondent - Society as a bill collector, on attaining the age of superannuation, on 31.05.2013. He says that, however, abruptly and without any notice to him, his pay and allowances during the entire tenure of his service were recalculated and an amount of Rs.6,31,428/- recovered from him, as is evident from Ext.P2, further denying him the benefit of 200 days of earned leave surrender. He says that this is illegal and unlawful, particularly because the eligible fourth higher grade was also denied, solely because the Society says there was an audit objection raised. 2. The petitioner further asserts that though he was entitled to the fourth higher grade on completion of 28 years of service, he has been granted only the earlier ones and not the same and alleges that this is illegal and unlawful, also for the additional reason that the Concurrent Auditor or the Regular Auditor raised no objection to the payment of his salary even as per the Audit Report. 3. Sri.P.V.Baby – learned counsel for the petitioner, argued that the recovery made from his client and denial of the WP(C) NO. 18144 OF 2014 3 above said benefits are both impermissible and untenable, going by the judgment of the Hon'ble Supreme Court in **State** **of Punjab & others v. Rafiq Masih (White Washer) & others** [(2015) 4 SCC 334], because his client was working only as a bill collector and no proceedings had been initiated against him until his retirement. He submitted that the allegations against his client are with respect to the fixation of pay while he was in service, but there is absolutely not even a whisper in the Audit objections that this was on account of any reason that can be attributed to him. He argued that, as has been declared in **Rafiq Masih** (supra), when his client's pay was fixed validly, without even an application from the employer, particularly when he was employed in the last grade, recovery after he retired was impermissible, especially because there was nothing on record to even indicate that a liability had been fixed. The learned counsel, therefore, prayed that the reliefs sought for in this writ petition be granted. 4. Sri.P.C.Sasidharan – learned standing counsel for the Society, on the other hand, submitted that his client was only acting as per the audit objections and that they have no other WP(C) NO. 18144 OF 2014 4 option. He, however, conceded that there was no fixation of liability, but asserted that the petitioner had given consent for the same just before his retirement. He pointed out to Ext.R1(b) in substantiation and argued that, therefore, his client cannot be seen to have acted in error, in having recovered the money or denied the benefits. He thus prayed that this writ petition be dismissed. 5. In reply, Sri.P.V.Baby – learned counsel for the petitioner, submitted that Ext.R1(b) and various other documents produced on record by the Society were created on papers signed by his client after his retirement and therefore, that it cannot have any legal validity. He added that, even assuming it is otherwise, going by **Rafiq Masih** (supra), no recovery or denial of benefits could be permitted on the ground of an alleged liability, which was never fixed in terms of law. He concluded his submissions saying that, since the fixation of pay earlier made in his client's favour was not on account of any reason that can be held against him, any such recovery or denial can only be seen to be in blatant violation of **Rafiq Masih** (supra). 6. I must say that I find substantial force in the afore WP(C) NO. 18144 OF 2014 5 submissions of Sri.P.V.Baby because, the petitioner retired in the year 2013; until which time, the records reveal – as is also admitted - that there was no liability fixed. Of course, an audit objection had been raised with respect to the manner in which his pay and allowances had been fixed and computed, but recovery could have been done only if an enquiry had been completed and the liability fixed in terms of law. However, as is luculent from the documents on record, no action was taken until the petitioner retired from service and even the alleged consents given by him are only either immediately before or after it. Hence, even going by the subsequent judgment of the Hon'ble Supreme Court in **High** **Court of Punjab and Haryana and Others v. Jagdev** **Singh** [2016 (3) KLT 2063 (SC)], recovery would be permissible only if the petitioner gave consent at the time fixation was made and not subsequently at the time of his retirement. These principles of law have now crystallized fully and cannot be now disturbed by the Society, through unilateral action even on the basis of an audit objection. 7. In fact, in my firm view, the Society ought to have answered the audit objections, rather than conceding to it in WP(C) NO. 18144 OF 2014 6 an automation fashion and then put the petitioner to detriment, as has been done in this case. This is also because, the petitioner asserts that the Concurrent Auditor or the Regular Auditor did not raise any objection to the payment of salary to him, in spite of the audit objection, while he was in service. 8. In the afore circumstances, I am certain that the audit objections against the petitioner cannot impose on him any prejudice or detriment. 9. Resultantly, I allow this writ petition and direct the Society to return the amount of Rs.6,31,428/-, which has been recovered from him through Ext.P2, along with the full 200 days of earned leave benefits or such other, as are eligible to him, consequent to his service. The Society shall also compute the amounts eligible to the petitioner resultant to the fourth higher grade on completion of 28 years and his benefits shall be reworked in such a manner, with the additional sums also paid concomitantly with the afore. 10. The afore shall be done by the Society, after affording an opportunity of being heard to the petitioner, as expeditiously as is possible, but not later than four months 7 WP(C) NO. 18144 OF 2014 from the date of receipt of a copy of this judgment; failing which, the entire amount will carry interest at the rate of 8% p.a from the date on which it became due, until it is actually paid. If the afore amounts are paid within the time frame fixed, then the petitioner is at liberty to seek interest as per law through appropriate proceedings; for which purpose, his contentions in that regard are left open before the appropriate forums. **Sd/- DEVAN RAMACHANDRAN** **JUDGE** stu WP(C) NO. 18144 OF 2014 8 ## **APPENDIX OF WP(C) 18144/2014** PETITIONER EXHIBITS EXT.P1:A TRUE PHOTOCOPY OF THE GOVERNMENT ORDER NO 36/11/CO-OP DTD 25/2/2011 - EXT.P2:A TRUE PHOTOCOPY OF THE RECEIPT DTD 30/11/2013 FOR RS 6,31,428/- ISSUED BY THE IST RESPONDENT TO THE PETITIONER - EXT.P3:A TRUE PHOTOCOPY OF THE RECEIPT DTD 30/11/2013 FOR RS.1,81,364/- ISSUED BY THE IST RESPONDENT TO THE PETITIONER - EXT.P4:A TRUE PHOTOCOPY OF THE RECEIPT DTD 13/1/2014 FOR RS.9,763/- ISSUED TO THE PETITIONER BY THE THODUPUZHA TALUK COOPERATIVE EMPLOYEES CO-OPERATIVE SOCIETIES - EXT.P5:A TRUE PHOTOCOPY OF THE REPRESENTATION DTD 20/6/2014 SENT UNDER REGISTERED POST WITH A/D BY THE PETITIONER TO THE 4TH RESPONDENT - EXT.P6:A TRUE PHOTOCOPY OF THE OF THE REPRESETNATION DTD 20/6/2014 SEND UNDER REGISTERED POST WITH A/D BY THE PETITIONER TO THE 3RD RESPONDENT - EXT.P7:A TRUE PHOTOCOPY OF THE REPRESENTATION DTD 20/6/2014 SEND UNDER REGISTERED POST WITH A/D BY THE PETITIONER TO THE IST RESPONDENT EXT.P8:A TRUE PHOTOCOPY OF THE REPRESENTATION DTD 20/6/2014 SEND UNDER REGISTERED POST WITH A/D BY THE PETITIONER TO THE JOINT DIRECTOR, CO-OPERATIVE AUDIT, IDUKKI RESPONDENTS' EXHIBITS: Exhibit R1(a) True copy of the objection raised by the WP(C) NO. 18144 OF 2014 9 ## statutory auditor Exhibit R1(b) True copy of the extract of the service book of the petitioner Exhibit R1(c) True copy of the salary details of the petitioner worked out for the period from 01/07/1991 to 31/05/2013 Exhibit R1(d) True copy of the receipt Exhibit R1(E) TRUE COPY OF THE FORM OF OPTION AND STATEMENT OF FIXATION OF PAY DATED 30/09/2013 SUBMITTED BY THE PETITIONER BASED ON WHICH THE SALARY WAS REFIXED W.E.F 01/07/1991 Exhibit R1(F) TRUE COPY OF THE FORM OF OPTION AND STATEMENT OF FIXATION OF PAY DATED 30/09/2013 SUBMITTED BY THE PETITIONER BASED ON WHICH THE SALARY WAS REFIXED W.E.F 01/04/1994 Exhibit R1(G) TRUE COPY OF THE FORM OF OPTION AND STATEMENT OF FIXATION OF PAY DATED 30/09/2013 SUBMITTED BY THE PETITIONER BASED ON WHICH THE SALARY WAS REFIXED W.E.F 01/04/1999 Exhibit R1(H) TRUE COPY OF THE FORM OF OPTION AND STATEMENT OF FIXATION OF PAY DATED 30/09/2013 SUBMITTED BY THE PETITIONER BASED ON WHICH THE SALARY WAS REFIXED W.E.F 01/04/2004 Exhibit R1(I) TRUE COPY OF THE FORM OF OPTION AND STATEMENT OF FIXATION OF PAY DATED 30/09/2013 SUBMITTED BY THE PETITIONER BASED ON WHICH THE SALARY WAS REFIXED W.E.F 01/07/2004 Exhibit R1(J) TRUE COPY OF THE FORM OF OPTION AND STATEMENT OF FIXATION OF PAY DATED 30/09/2013 SUBMITTED BY THE PETITIONER WP(C) NO. 18144 OF 2014 10 BASED ON WHICH THE SALARY WAS REFIXED W.E.F 13/08/2018 Exhibit R1(K) TRUE COPY OF THE FORM OF OPTION AND STATEMENT OF FIXATION OF PAY DATED 30/09/2013 SUBMITTED BY THE PETITIONER BASED ON WHICH THE SALARY WAS REFIXED W.E.F 01/05/2009 Exhibit R1(L) TRUE COPY OF THE FORM OF OPTION AND STATEMENT OF FIXATION OF PAY DATED 30/09/2013 SUBMITTED BY THE PETITIONER BASED ON WHICH THE SALARY WAS REFIXED W.E.F 01/08/2009 Exhibit R1(M) TRUE COPY OF THE PERFORMA PARTICULARS REQUIRED FOR SANCTIONING THE HIGHER GRADE SCALE DATED 30/09/2013 SUBMITTED BY THE PETITIONER