High Court of KeralaSingle Judge2023-07-20Writ petition allowed in part; Ext.P1 set aside...

N. GOPALAKRISHNAN POTTY v. Travancore Devaswom Board & Others

Case / Petition Number:WP(C) NO. 33146 OF 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2023-07-20
Court Decision / Holding: The Court held that the petition should be allowed in part. Ext. P1’s fixation of liability and deduction from the petitioner’s retiral benefits were set aside to the extent of Rs. 1,89,538 and the entire amount should be fully disbursed to the petitioner within one month from receipt of this judgment. If the amount is paid within the stipulated period, the petitioner may pursue alternative remedies for interest; if not paid, interest at 7% per annum would accrue from the date it became due until payment. The decision aligns with the principle in Rafiq Masih that no recovery should be ordered against a low-paid employee after retirement, particularly when the payment was made under valid orders without the employee’s fault or misrepresentation.
Final Disposition: Writ petition allowed in part; Ext.P1 set aside to the extent of deduction; full retiral disbursal to the petitioner within one month; possible interest if delayed, and liberty to pursue alternative remedies.

Parties to the Case

Appellants / Petitioners

N. Gopalakrishnan Potty

Respondents

Travancore Devaswom Board represented by its Secretary, Devaswom Head Quarters, NANTHANCODE, Thiruvananthapuram-695003
The Secretary, Travancore Devaswom Board, Devaswom Head Quarters, NANTHANCODE, Thiruvananthapuram-695003
Devaswom Commissioner, Travancore Devaswom Board, Devaswom Board Quarters, NANTHANCODE, Thiruvananthapuram-695003
Devaswom Accounts Officer, Devaswom Accounts Office, Travancore Devaswom Board, Devaswom Head Quarters, NANTHANCODE, Thiruvananthapuram-695003
The Assistant Devaswom Commissioner Thiruvananthapuram Group, Travancore Devaswom Board, Pazhavangadi, Thiruvananthapuram-695023
The Sub Group Officer, Valiya sala Devaswom, Thiruvananthapuram Group, Travancore Devaswom Board, Thiruvananthapuram-695036

Legal Representation & Advocates

Counsels for Petitioners

• D. Ajithkumar
• Harsha S. Nair
• T. Manasy

Counsels for Respondents

• Sri. C. K. Pavithran [SC]

Case Synopsis & Summary

N. Gopalakrishnan Potty, a retired priest (Santhi) of the Travancore Devaswom Board, challenged the Board’s decision to deduct from his retirement benefits an amount of Rs. 1,89,538 on account of an alleged overpayment arising from a prior, allegedly erroneous fixation of pay. The petitioner retired on 30.11.2021; subsequent communications suggested a liability had been fixed against him and that the amount would be recovered from his retiral benefits (Ext. P1 and P2). The petitioner contends that no liability or enquiry was pursued during service to justify such recovery, and that the unilateral deduction violates settled law. His counsel argued that, as per the Supreme Court’s decision in State of Punjab v. Rafiq Masih (White Washer) (2015) 4 SCC 334, no recovery can be ordered from a low-paid employee after retirement when the disputed payment was made lawfully and without misrepresentation or fraud. The petitioner also invoked Jaydev Singh to emphasize that recovery requires an undertaking to refund. The respondent Board asserted the liability originated from an earlier erroneous payment due to pay fixation and could be adjusted against retirement benefits. The High Court ultimately held that, in light of Rafiq Masih, recovery could not be ordered and directed full disbursement of the amount within a month, with interest if delayed, while leaving open other remedies for the petitioner.

Legal Doctrines & Maxims

No recovery from low paid employees after retirement (Rafiq Masih doctrine)
Undertaking requirement for refund in recovery cases (Jaydev Singh)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the liability of Rs. 1,89,538/- fixed against him was determined without any action initiated during service to recover the amount, and that recovery from retirement benefits is illegal in light of Rafiq Masih’s settled principle. He argues that the payment was made on valid orders and without misrepresentation or fraud, and that unilateral deductions post-retirement violate due process and constitutional protections. His counsel emphasizes that the Board’s Ext. P1 fixation occurs after retirement and seeks to nullify the unilateral recovery in contravention of law and Supreme Court guidance.

Contentions of Respondents

The Board argues the liability arose from an amount paid due to wrong pay fixation and that it was lawful to adjust such an amount against the petitioner’s retiral benefits. It asserts that Ext. P2 records the liability and that the Board’s actions were preexisting and valid, seeking dismissal of the petition on the basis that recovery can be effected through legitimate adjustments in retirement benefits.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
State of Punjab v. Rafiq Masih (White Washer)	2015 (4) SCC 334	Positive	Used to establish the principle that no recovery can be ordered from a low-paid employee after retirement where the payment was made lawfully, supporting the petitioner’s position.
High Court of Punjab & Haryana & Others v. Jaydev Singh	2016 (14) SCC 267	Positive	Cited to illustrate the undertaking requirement for refund in recovery scenarios; supports the view that recovery without an undertaking is not feasible, reinforcing the writ petition’s relief.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` # `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` THURSDAY, THE 20[TH] DAY OF JULY 2023 / 29TH ASHADHA, 1945 ``` ## `WP(C) NO. 33146 OF 2022` ## `PETITIONER:` ``` N.GOPALAKRISHNAN POTTY, AGED 57 YEARS S/O NARAYANAN POTTY, NITHA BHAVAN, MAMOOTTILVILA, EEZHAKAVU, PERUKAVU.P.O, THIRUVANANTHAPURAM-695573. BY ADVS. D.AJITHKUMAR HARSHA S. NAIR T.MANASY ``` ## `RESPONDENTS:` - `1 THE TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM-695003.` - `2 THE SECRETARY, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM-695003.` - `3 DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, DEVASWOM BOARD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM-695003.` - `4 DEVASWOM ACCOUNTS OFFICER, DEVASWOM ACCOUNT OFFICE, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM695003.` - `5 THE ASSISTANT DEVASWOM COMMISSIONER THIRUVANANTHAPURAM GROUP, TRAVANCORE DEVASWOM BOARD, PAZHAVANGADI, THIRUVANANTHAPURAM-695023.` - `6 THE SUB GROUP OFFICER, VALIYASALA DEVASWOM, THIRUVANANTHAPURAM GROUP, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM-695036.` ``` SRI.C.K.PAVITHRAN [SC] ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 20.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 33146 OF 2022 ``` ``` 2 ``` ## `JUDGMENT` ``` The petitioner retired as a ‘Santhi’ ``` ``` (Priest) on 30.11.2021, from the services of the ``` ``` 1[st] respondent – Board. However, when his retiral benefits were sought to be disbursed, he was informed that a liability of Rs.1,89,538/- has been fixed against him and therefore, that he is ``` ``` not eligible to the said amount. ``` ``` 2.The petitioner asserts that the afore allegation, as reflected in Ext.P2 – Pension Payment Order, is illegal and unlawful because even as per the admitted case of the 1[st] respondent, the afore amount was allegedly found ineligible only on account of wrong fixation of pay, while he was in service. He argues that no action had been taken before he retired, on attaining the age of superannuation, for ``` ``` WP(C) NO. 33146 OF 2022 ``` ``` 3 ``` ``` recovery of the said amounts, or for fixation of liability and hence that the action of the 1[st] respondent – Board is contrary to the declarations of law by the Hon’ble Supreme Court in State of Punjab v. Rafiq Masih (White Washer) [{2015} 4 SCC 334]. ``` ``` 3.Sri.D.Ajith Kumar – learned counsel for the petitioner, reiterated that, even assuming that the afore amount was ineligible to his client - without admitting it in any manner - same cannot be now recovered on account of the ``` ``` declarationsinRafiqMasih(supra), particularly because his client was a low paid employee, who had retired three years earlier. He submitted that, without any action having been taken, either to fix liability or to cause an enquiry, while his client was in service, the ``` ``` WP(C) NO. 33146 OF 2022 ``` ``` 4 ``` ``` unilateral action of the Devaswom Board is ``` ``` illegal and unconstitutional. ``` ``` 4.The learned Standing Counsel for the ``` ``` Devaswom Board – Sri.C.K.Pavithran, conceded ``` ``` that the quantification of liability against the ``` ``` petitioner was not done while he was in service, ``` ``` or consequent to an enquiry. He argued that, however, when an amount of Rs.1,89,538/- had ``` ``` been illegally paid to the petitioner in the past, due to wrong fixation of pay, his client is fully justified in adjusting it against his ``` ``` retiral benefits, which has been done as shown ``` ``` in Ext.P2. He thus prayed that this writ ``` ``` petition be dismissed. ``` ``` 5.I am afraid that I cannot find favour ``` ``` with the afore submissions of Sri.C.K.Pavithran, because law is now well settled, through Rafiq ``` ``` WP(C) NO. 33146 OF 2022 ``` ``` 5 ``` ``` - Masih(supra)without requirement for ``` ``` restatement – that no recovery can be ordered against low paid employees after retirement, particularly when the disputed payment has been offered to him without any cause attributable to ``` ``` him, or without establishing that he had obtained it under misrepresentation or fraud. ``` ``` 6.In the case at hand, on the contrary, it ``` ``` is expressly and unequivocally admitted that petitioner was paid the amounts in question without any request having been made by him and based on valid orders at the relevant time. Therefore, even going by High Court of Punjab & ``` ``` Haryana & Others v.Jaydev Singh[(2016) 14 SCC ``` ``` 267],unless the petitioner had given an undertaking, that he would refund the said amount, at the time when it was paid to him, ``` ``` WP(C) NO. 33146 OF 2022 ``` ``` 6 ``` ``` recovery as ordered through Ext.P2 is impossible. ``` ``` In the afore circumstances, I order this ``` ``` writ petition and set aside Ext.P1, to the ``` ``` extent to which it has fixed deducted an amount of Rs.1,89,538/- as liability and thus deducting from the retiral benefits of the petitioner; with a consequential direction to the respondents to ensure that said amount is fully disbursed to him, within a period of one month from the date of receipt of a copy of this judgment. ``` ``` If the said amount is paid within the afore time frame, the petitioner will be at full liberty to invoke his alternative remedies for interest, if he is so desirous; but, on the other hand, if the amount is not paid as ordered ``` ``` WP(C) NO. 33146 OF 2022 ``` ``` 7 ``` ``` above, then it will carry interest at the rate of 7% per annum from the date on which it is eligible, till it is paid. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` SAS ``` ``` WP(C) NO. 33146 OF 2022 ``` ``` 8 ``` ## `APPENDIX OF WP(C) 33146/2022` ``` PETITIONER’s EXHIBITS: ``` ``` Exhibit P1 ``` ``` TRUE COPY OF THE COMMUNICATION ISSUED BY 4TH RESPONDENT DEVASWOM ACCOUNTS OFFICER DA.NO.1702/ 2022/01 DIRECTING THE MANAGER, DHANALEKSHMI BANK LTD., NANTHANCODE SHOWING THE LIABILITIES TO BE RECOVERED FROM THE DCRG OF THE PETITIONER. ``` ``` Exhibit P2TRUE COPY OF THE PENSION PAYMENT ORDER ISSUED BY THE 4TH RESPONDENT DATED NIL. ``` ``` Exhibit P3TRUE COPY OF THE REPORT OF THE 6TH RESPONDENT DATED NIL. ``` ``` Exhibit P4 ``` ``` Exhibit P5 ``` ``` TRUE COPY OF THE ROC NO.8639/19/MIS-1 DATED 19.11.2020 ISSUED BY THE RESPONDENT BOARD. TRUE COPY OF THE ROC.NO. 8639/19/MIS-1 DATED 21.12.2020 ISSUED BY THE RESPONDENT BOARD. ```