M. Thayammal v. Director, Urban Affairs, Thiruvananthapuram; Secretary, Corporation of Cochin; Addl.R3 – Senior Deputy Director, Kerala State Audit Department (Respondents)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941** ## **WP(C).No.31337 OF 2018(N)** ## **PETITIONER:** **M.THAYAMMAL AGED 60 YEARS** **W/O MUNIYANDI, PULIMOTTIL PARAMBU, CORPORATION COLONY, PANAYAPPILLY, COCHIN -2** **BY ADVS. SRI.K.S.MADHUSOODANAN SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR SRI.K.S.MIZVER SMT.S.JESSIN SMT.C.C.BINDHYA** ## **RESPONDENTS:** **1 DIRECTOR, URBAN AFFAIRS, THIRUVANANTHAPURAM THIRUVANANTHAPURAM- 695 001** **2 SECRETARY CORPORATION OF COCHIN, ERNAKULAM-682011.** **3 ADDL.R3- SENIOR DEPUTY DIRECTOR, KERALA STATE AUDIT DEPARTMENT, ERNAKULAM.** **ADDL.R3 IS SUO MOTU IMPLEADED AS PER ORDER DATED 6/2/2019 IN WP(C) NO.31337/2018.** ## **R2 BY ADV. SRI.V.S.SREEJITH,SC,COCHIN CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.31337 OF 2018(N)** **2** ## **JUDGMENT** **Dated this the 5th day of September 2019** The petitioner who was a contingent employee under the respondent Corporation of Cochin has approached this Court seeking the following reliefs:- - _i. Call for records connecting Ext.P1_ - _from the respondents;_ _ii. Issue Writ of Mandamus directing the respondents to disburse provident fund due to the petitioner;_ _iii. Issue Writ of Mandamus directing the 2[nd] respondent to disburse to the petitioner:_ _a) Wage revision arrears with effect from 1-7-14 to 31-3-18; b) Dearness Allowance not merged in P.F. due from July, 1999 to 31-3-18; c) Pension with arrears;_ _d) Commutation Value of Pension;_ _e) Gratuity;_ _AND_ _iv. Award cost to the petitioner._ _v. Call for Exhibit P-2 and Issue Writ of Certiorari to quash the same;_ _vi. Issue Writ of Mandamus directing the respondents to disburse Rs.73,224/- recovered_ **WP(C).No.31337 OF 2018(N)** **3** _under Ext.P-2, to the petitioner._ 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent Corporation. 3. It is submitted that the petitioner had retired from service on 31.03.2018. She had also submitted that all necessary papers for drawing pension benefits. However, it is submitted that by Ext.P2 order dated 21.01.2019, the DCRG of the petitioner had been released only after retaining an amount of Rs.73,224/- from the same. 4. It is submitted by the learned counsel for the petitioner that the recovery of Rs.73,224/- from the petitioner was not after fixing any liability on her with due notice to her. The learned counsel for the petitioner submits that the action of the respondents in having effected recoveries from the petitioner's gratuity without any legally sustainable order of recovery is completely illegal and unsustainable. 5. The respondents have filed a counter **WP(C).No.31337 OF 2018(N)** **4** affidavit and an additional counter affidavit in this writ petition. It is submitted that apart from the amount recovered from the petitioner's DCRG, all other amounts due had been calculated and released to the petitioner during the pendency of this writ petition. It is submitted that it was only on account of the petitioner having drawn amounts in excess of her legal entitlement in wage revisions that the amount of Rs.73,224/- was recovered from the gratuity payable to her. Along with the additional counter affidavit, three undertakings signed by the petitioner, one dated 01.03.2010, the second one being undated and the third dated 29.09.2016 are produced and it is contended that in view of the undertakings submitted by the petitioner, the recovery of the amounts from the gratuity was completely in order. It is contended that the decision of the Apex Court in _**State of Punjab Vs. Rafiq Masih (White Washer) [2015(1) KLT 429]**_ does not apply in a case where the recovery is on account of clear **WP(C).No.31337 OF 2018(N)** **5** undertakings submitted by the employee. 6. I have considered the contention advanced. It is not in dispute that the petitioner was a contingent employee and that she had retired from the service on 31.03.2018. No steps have been taken prior to her retirement or even after her retirement to put the petitioner on notice of any liability as against her or to quantify the liability in a method known to law. Even in Ext.P2 order, apart from intimating recovery of Rs.73,224/-, the nature of the liability or the reason for the same is not mentioned. It is only in the counter affidavit of the respondents that an attempt is made to contend that it was on the basis of the excess pay and allowances drawn by the petitioner on account of wage revisions that the amount is sought to be recovered. Even in the counter affidavit, no details as to the mistakes which have occurred and the calculation leading to the amounts recovered are conspicuously absent. The contention appears to be that the undertakings **WP(C).No.31337 OF 2018(N)** **6** given would permit such an exercise. 7. I am of the opinion that, in view of the fact that the petitioner who was contingent employee of the Corporation had retired from service on 31.03.2018, it was completely impermissible for the respondents to have inflicted a recovery from the gratuity payable to her, on account of mistakes in the calculation of wage revisions. This is more so, in view of the fact that the petitioner was never even put on notice or informed the reason for the recovery made from her. Moreover, the learned counsel for the petitioner would rely on a decision of the Apex Court in _**Nagar Ayukt Nagar Nigam, Kanpur Vs. Mujib Ullah Khan and another**_ [(2019) 6 SCC 103] to contend that the Payment of Gratuity Act, 1972 (39 of 1972)is applicable to employees of local bodies and that as such, without an order of forfeiture under Section 4(6) of the Payment of Gratuity Act, no recovery can be made from the gratuity payable to the petitioner. The recovery of the amounts **WP(C).No.31337 OF 2018(N)** **7** without any quantification of the liability with notice to the petitioner was bad in law. Ext.P2 order is set aside. There will be a direction to the respondents to release the amount recovered from the petitioner's gratuity within a period of one month from the date of receipt of a certified copy of this judgment. The writ petition is ordered accordingly. **Sd/-** **ANU SIVARAMAN** **JUDGE** **WP(C).No.31337 OF 2018(N)** **8** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE NOTICE DATED 14/09/2017 ISSUED ASST.HEALTH OFFICER BEARING NO.WZH9/416/2011 UNDER THE 2ND RESPONDENT.** **EXHIBIT P2 PHOTOCOPY OF THE ORDER BEARING NO. ISO/MOA 22/033570/18 DATED 21/1/2019 OF THE 2ND RESPONDENT.** **RESPONDENTS' EXHIBITS:-** **EXHIBIT R2C** **TRUE COPY OF THE UNDERTAKING SIGNED BY THE PETITIONER** SAS/05/09/2019 //TRUE COPY// P.A. TO JUDGE