OP (CAT) No. 249 of 2017 (Z)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **& THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 26TH DAY OF OCTOBER 2017/4TH KARTHIKA, 1939** **OP (CAT).No. 249 of 2017 (Z)** **-----------------------------** ## **O.A.NO.180/00228/2017 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM DATED 11.07.2017** **PETITIONER(S):** **---------------------** **1. THE PRINCIPAL, KENDRIYA VIDYALAYA, MYSORE, GITB PRESS CAMPUS, SIDHARTHA NAGAR, MYSORE - 570 011.** **2. THE DEPUTY COMMISSIONER, KENDRIYA VIDYALAYA SANGATHAN, REGIONAL OFFICE, BANGALORE - 560 042** **3. THE DEPUTY COMMISSIONER, KENDRIYA VIDYALAYA SANGATHAN, REGIONAL OFFICE, ERNAKULAM, KADAVANTHRA POST, KOCHI - 682 020.** ## **BY ADV. SRI.K.I.MAYANKUTTY MATHER, SC, KENDRIYA VIDYALAYA SANGATHAN** ## **RESPONDENT(S):** **-------------------------** **CICILY EALIAS, W/O. EALIAS, AGED 60 YEARS, (RETD) ASSISTANT, KENDRIYA VIDYALAYA, MYSORE RESIDING AT: ZION NAZARETH, MURIYAD POST, IRINJALAKKUDA, THRISSUR - 680 683.** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 26-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (CAT).No. 249 of 2017 (Z)** **-----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **EXHIBIT P1 TRUE COPY OF THE OA NO.228/2017 FILED BY THE RESPONDENT BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE PETITIONERS IN O.A.228/2017.** **EXHIBIT P3 TRUE COPY OF THE ORDER OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN O.A.NO.228/2017.** **RESPONDENT(S)' EXHIBITS** **----------------------------------------** ## **NIL** **//True Copy//** ## **P.A. To Judge** **Bb** ## **P.R.RAMACHANDRA MENON & SHIRCY V., JJ.** **---------------------------------------------------** **O.P (CAT)No.249 of 2017 --------------------------------------------------Dated this, the 26[th] day of October, 2017.** ## **J U D G M E N T** ## P.R.Ramachandra Menon, J. Correctness and sustainability of Ext.P3 order passed by the the Tribunal in O.A.No.228/2017 preferred by the respondent herein, is under challenge at the instance of the respondents in the O.A. 2. Pursuant to the 'notice on admission' ordered by this Court on 24.08.2017, the respondent has entered appearance, in person. 3. Heard the learned Standing Counsel for the petitioners as well as the party respondent, at length. 4. The respondent herein was serving under the first respondent as Audit Assistant, who commenced her service on 12.04.1985 and retired on 30.11.2016. In the meanwhile, pursuant to various orders and benefits extended to the employees, the respondent herein was also granted the benefit of 3[rd] MACP w.e.f. 12.04.2015. It O.P (CAT)No.249 of 2017 : 2 : was later, that the authorities found out that the respondent was not actually entitled to have the benefit of the 3[rd] MACP and hence, it was sought to be corrected. This led to the further orders to the effect that her pay had to be regulated, granting a grade pay of just Rs.4,800/- in the pay band of Rs.9300-34800 w.e.f. 12.04.2015, instead of the grade pay of Rs.5,400/- in the pay band of 15600-39100. According to the respondent, this order was passed without giving an opportunity of hearing to her. 5. As per the proceedings issued by the authorities, a sum of Rs.15,945/- was ordered to be recovered from the salary of the applicant for the month of November, 2016 - the month in which she had retired from the service, as discernible from Annexure A1. Subsequently, the retirement benefits were disbursed to her only to the tune of Rs.9,24,333/-, retaining a sum of Rs.75,667/(which was the balance to be satisfied according to the respondents in the O.A. towards the excess payment already effected). It was in the said circumstance, that O.P (CAT)No.249 of 2017 : 3 : ## the proceedings of the respondents are sought to be challenged by filing the O.A. with the following prayers: “ In view of the facts of the case mentioned in Para 4 and the grounds of relief in Para 5 above, the applicant prays for the following relief(s): - (i) Call for the records and quash Annexure A-1 and Annexure A-2 (ii) The respondents may be directed to refund the amount of Rs.91612/- immediately to the applicant with 12% interest (iii) Exemplary cost for the illegalities willfully committed by the respondents with the express intention to harass the applicant and to destroy her peace of mind. (iv) Such other directions(s) as this Hon'ble Court deems fit to grant in the interest of justice”. 6. The course pursued by the respondents in the O.A. was sought to be justified by filing a reply statement. It was asserted by the respondents in the O.A. that the applicant was never entitled to have the benefit of the 3[rd] MACP under any circumstance. After hearing both the sides, the Tribunal observed in Ext.P3, that the issue lay in a narrow compass, in so far as the Tribunal was more concerned with the recovery of the excess amount sought to be made. It was hence observed that the matter of applicant's eligibility for the O.P (CAT)No.249 of 2017 : 4 : 3[rd] MACP benefit was not relevant. The observation as contained in paragraph 7 is extracted for easy reference: “7. The issue lies in a narrow compass. The matter of applicant's eligibility for 3[rd] MACP benefit is not relevant here. What I have to decide is the legality or otherwise of the recovery ordered a month before the applicant's superannuation and recovery of a large sum of money from her last month's salary and eligible gratuity”. 7. After confining the scope of scrutiny to a said extent, the Tribunal made a reference to the law declared by the Apex Court in **State of Punjab and Ors. vs. Rafiq Masih [(2015) 4 SCC 334]** , which provided that recovery may not be permissible under certain specific circumstances, as extracted in paragraph 8. It was with reference to the factual and legal position, that the Tribunal observed in the next paragraph, that the applicant was working as an Audit Assistant who squarely fell within the categories mentioned by the Apex Court and as such, no recovery was possible; more so, when the alleged rectification process was done only less than a month before her retirement. It was accordingly, that the O.A. was allowed to the extent of directing the O.P (CAT)No.249 of 2017 : 5 : respondents in the O.A. to refund the amount of Rs.91,612/- with interest at the applicable PF rate within three weeks from the date of receipt of a copy the judgment. This order is under challenge in this Original Petition. 8. After hearing both the sides, we find that the correction of the mistake noted by the Department in the matter of granting the 3[rd] MACP benefit to the respondent/applicant, has not been intercepted by the Tribunal, but for the inference made with regard to the recovery already effected partly from the last month's salary ie., November, 2016 and retention of the remaining portion of the retirement benefits payable to her. There is no dispute to the fact that the respondent was working as a 'Group B' employee at the time of her retirement. Her case comes within the purview of 'Clause ii' of the forbidden circumstances mentioned by the Supreme Court in **Rafiq Masih's Case** (supra) which stands extracted in 'paragraph 8' of Ext.P3 order ie., there could not be any recovery from the employees who O.P (CAT)No.249 of 2017 : 6 : are due to retire within a period of one year of the order of recovery. In the said circumstance, the order passed by the Tribunal, directing refund of the amount of Rs.91,612/- to the respondent/applicant does not warrant any interference. This is more so since the circumstance under which recovery, if at all sustainable, has been made out by the Apex Court as per the subsequent ruling reported in **High Court of Punjab and Haryana and Ors. vs. Jagdev Singh [AIR 2016 SC 3523]** . There is an assertion from the part of the respondent/applicant, as taken note of by the Tribunal in paragraph 4 of Ext.P3, that she had never given any 'consent' for the recovery in connection with the fixation given. The learned counsel for the petitioners also fairly concedes that, on going through the file, no such 'undertaking or consent' is seen as given from the part of the respondent/applicant. In the said circumstance, the verdict passed by the Tribunal with regard to the refund to be effected does not warrant interference. 9. However, we do not find it as a fit case to cause O.P (CAT)No.249 of 2017 : 7 : payment of 'interest' with regard to the recovery effected already in so far as the eligibility to get the said amount has not been established and the recovery is intercepted only as a matter of gratis. Accordingly, we modify Ext.P3 order to the limited extent, whereby, the direction to effect payment of 'interest' stands interdicted; while sustaining the order of refund of Rs.91,612/-. The said amount shall be refunded to the respondent, at the earliest, at any rate, within two months from the date of receipt of a copy of this judgment. Original Petition stands disposed of. Sd/- **P.R.RAMACHANDRA MENON, JUDGE** Sd/- **SHIRCY V., JUDGE** Bb/28/10/2017 _[True copy]_ _P.A to Judge_