M.K. SANTHOSH KUMAR v. TRAVANCORE DEVASWOM BOARD and Others

1 WPC 33170/23 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` WEDNESDAY, THE 3[RD] DAY OF APRIL 2024 / 14TH CHAITHRA, 1946 ``` ``` WP(C) NO.33170OF 2023 ``` ## **`PETITIONER/S:`** ``` M.K. SANTHOSH KUMAR AGED 54 YEARS S/O. KRISHNAN NAMBOOTHIRI, VADAKKE MARANGATTU MADOM, THIRUVANVANDOOR PO, CHENGANNOOR TALUK, ALAPUZHA DISTRICT -, PIN - 689109 ``` ``` BY ADVS. K.SASIKUMAR P.S.RAGHUKUMAR S.ARAVIND ANITHA CHANDRAN ``` ## **`RESPONDENT/S:`** - **`1 TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, DEVASWOM HEAD QUARTERS, DEVASWOM BUILDINGS, NANTHANCODE, THIRUVANANTHAPURAM, PIN - 695003`** - **`2 DEVASWOM COMMISSIONER DEVASWOM HEAD QUARTERS, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM, PIN - 695003`** - **`3 ASSISTANT COMMISSIONER TRAVANCORE DEVASWOM BOARD, ARANMULA GROUP, ARANMULA (PO), PATHANAMTHITTA DISTRICT, PIN - 689533`** - **`4 ADMINISTRATIVE OFFICER CHENGANNOOR DEVASWOM, TRAVANCORE DEVASWOM BOARD, CHENGANNOOR, PIN - 689121`** - **`5 ASSISTANT DEVASWOM AUDIT OFFICER TRAVANCORE DEVASWOM BOARD, AMBALAPUZHA ALAPPUZHA DISTRICT, PIN - 688561`** ``` BY ADV Pavithran CK ``` ## **`OTHER PRESENT:`** ``` SC SRI. C.K PAVITHRAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 WPC 33170/23 ## **JUDGMENT** (Dated this the 3[rd] day of April 2024) The petitioner entered the service of the 1[st] respondent as a Santhi by order dated 28.8.1993. He is now working as Santhi at Thrikkanapuram Devaswom in Chengannur sub group of Aranmula group. He is affected by diabetes mellitus and the Doctor who treated him issued Ext.P1 advising him to go for amputation below knee. In such circumstances, the petitioner filed Ext.P3 representation before the 4[th] respondent for voluntary retirement and requested for disbursement of the terminal benefits. The 3[rd] respondent forwarded the service book of the petitioner to the 4[th] respondent for necessary audit verification, and was informed by Ext.P4 letter dated 12.6.2023 that the petitioner has received an excess amount of Rs.10,16,862/- due to irregular pay fixation from 10.6.1999. Following Ext.P4, Ext.P5 is issued by the 4[th] respondent to the 3 WPC 33170/23 petitioner informing him to remit the excess amount of Rs.10,16,862/- and produce the challan for processing the application for VRS. The petitioner, thereafter, sent Ext.P6 reply to Ext.P5, pointing out his inability to remit the amounts due to financial condition and to allow VRS without insisting for payment of the amount as stated in Ext.P4. Ext.P6 has been forwarded by the 4[th] respondent to the 2[nd] respondent and is now pending consideration by respondent Nos.1 and 2. The petitioner, therefore, has approached this court for the following reliefs: i.To call for the records leading to the issue of Exts. P4 and P5 issued by the respondents and quash the same by the issue of a writ in the nature of certiorari; ii.To issue a writ the nature of mandamus directing the respondents to pass formal orders admitting the petitioner to voluntary retirement from service on medical grounds with effect from 01-06-2023. iii.To issue a writ the nature of mandamus directing the respondents to pay all the retirement benefits dues to the petitioner viz., monthly pension with arrears, Death-CumRetirement Gratuity, commuted value of pension, pay revision arrears etc, immediately, 4 WPC 33170/23 iv. Dispense with filing of the translation of vernacular documents. v. to issue any other writ, declaration, order or direction appropriate in the circumstances of the case. 2. A counter affidavit is filed by the 3[rd] respondent, in which it is stated that for sanctioning VRS, non liability certificates from all Devaswom, where he worked are necessary. On verification of service records, it is reported that there is a liability of Rs.10,16,862/- by the petitioner on account of erroneous fixation of salary from 10.6.1999 onwards. The application for VRS could not be processed due to the pendency of liability which was conveyed to the petitioner as per Ext.Nos.P4 and P5. He was directed to remit the amount and to produce the chalan, but he filed Ext.P6 representation expressing his inability to remit the same. The decision of the apex court in **State of Punjab v. Rafiz Masih [(2015) 4 SCC 334],** relied on by the petitioner, is not applicable to the facts of 5 WPC 33170/23 this case, since the liability is already ascertained and conveyed to him more than 2 years before his retirement. On getting information upon the liability, he submitted the application for VRS to get away from the recovery. It is also stated that if the petitioner has any grievance in Ext.Nos.P4 and P5, he can approach respondent Nos.1 and 2 for redressal of his grievance and if such a representation is filed before respondent Nos.1 and 2, the same will be considered in accordance with law. 3. A reply is filed by the petitioner in which Ext.P7 is produced to show that there was an amputation of his leg below knee on 25.10.2023 and it is heeled. It is also stated that in Ext.P3 he has given an undertaking only to the extent of recovery of any liability to the Board if it is created by the petitioner himself. The amount shown in Ext.Nos.P4 and P5 is not on the basis of the action taken by the petitioner, but due to improper fixation of pay revision from 1999 onwards by the 6 WPC 33170/23 department authorities and therefore, the judgment of the apex court in **Rafiz Masih** ’s case squarely applies. 4. Heard Shri.K.Sasikumar for the petitioner and the standing counsel Sri. C. K. Pavithran for the respondents. 5. Ext.P4 is a letter dated 12.6.2023 issued by 5th respondent to the 3rd respondent informing that the petitioner has received an excess of Rs.10,16,862/- on wrong fixation of pay scale and acting on Ext.P4, the 4[th] respondent has issued a letter to the petitioner on 31.7.2023 directing him to remit the amount and to produce the chalan. The petitioner has filed Ext.P6 representation before the 4[th] respondent to exonerate him from the liability and to grant him VRS with all terminal benefits. Since Ext.Nos.P4 and P5 are issued by respondent Nos.5 and 4 respectively, the request of the petitioner for VRS without paying the amounts as stated in Ext.Nos.P3 and P4 has to be considered by the 1[st] respondent, which is the Travancore 7 WPC 33170/23 Devaswom Board. Therefore, I direct the 4[th] respondent to forward Ext.P6 to the 2[nd] respondent to place it before the 1[st] respondent and the 1[st] respondent is directed to pass appropriate orders on Ext.P6 within a period of 2 months from the date of receipt of a certified copy of this judgment. While passing orders, the 1[st] respondent shall take into consideration the judgment of the apex court in **Rafiz Masih** (supra). 6. The petitioner to produce a copy of this Writ Petition in all respects along with the judgment before the 1[st] respondent for compliance. The Writ Petition is disposed of. Sd/- ## **BASANT BALAJI, JUDGE** . dl/ 8 WPC 33170/23 ## **`APPENDIX OF WP(C) 33170/2023`** ``` PETITIONER EXHIBITS ``` - **`Exhibit P1 A TRUE COPY OF THE MEDICAL CERTIFICATE DATED 21-092023 ISSUED FROM AMRITA INSTITUTE OF MEDICAL SCIENCES`** - **`Exhibit P2 A TRUE COPY OF THE APPOINTMENT ORDER DATED 28.08.1993 ISSUED BY THE SECOND RESPONDENT`** - **`Exhibit P3 A TRUE COPY OF THE APPLICATION DATED 25.04.2023 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT`** - **`Exhibit P4 A TRUE COPY OF THE LETTER DATED 12.06.2023 FORWARDED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT`** - **`Exhibit P5 A TRUE COPY OF THE LETTER DATED 31.07.2023 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER`** - **`Exhibit P6 A TRUE COPY OF THE REPRESENTATION DATED 04.08.2023 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT`** - **`EXHIBIT P7 A true copy of the Medical Certificate dated 23-122023 issued from the Amrita Institute of Medical Sciences`** - **`EXHIBIT P8 A true copy of the statement dated 15-05-2023 issued by the 4th respondent`**