O.P.(KAT) No.255 of 2020

1 O.P.(KAT) No.255 of 2020 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942** ## **OP(KAT).No.255 OF 2020** **AGAINST THE ORDER IN OA 1365/2018 DATED 29-08-2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS IN OA:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,PIN-695 001** - **2 THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT (DESIGN AND ADMINISTRATION), PUBIC OFFICE BUILDING, MUSEUM P.O., THIRUVANANTHAPURAM,PIN-695 033** - **3 THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, NH DIVISION, THIRUVAMPADI P.O., ALAPPUZHA, PIN-688 002** - **4 THE ACCOUNTANT GENERAL ( A AND E) KERALA, STATUE, THIRUVANANTHAPURAM, PIN-695 001 BY SRI.B.VINOD, SR.GOVERNMENT PLEADER** 2 O.P.(KAT) No.255 of 2020 ## **RESPONDENT/APPLICANT IN OA:** **ABRAHAM P. JOSEPH, AGED 60 YEARS S/O. JOSEPH J PANAT, ASSISTANT ENGINEER (RETIRED), PUBLIC WORKS DEPARTMENT, RESIDING AT PANAT, CMC 15, CHERTHALA P.O., ALAPPUZHA,PIN-688 524** ## **BY ADV. SRI.P.NANDAKUMAR** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 28.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(KAT) No.255 of 2020 ( **CR)** ## **ALEXANDER THOMAS & T.R. RAVI, JJ. -----------------------------------------------O.P.(KAT) No.255 of 2020** _[Arising out of order dated 29.08.2019 in O.A.No.1365/2018 of the KAT, Tvm. Bench]_ **--------------------------------------------------** ## **Dated this the 28[th] day of January, 2021 JUDGMENT** ## **T.R. RAVI, J.** The original petition has been filed by the State and its Officers who were respondents in O.A.No.1365/2018 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram (hereinafter referred to as the Tribunal). The respondent was the applicant before the Tribunal and the application had been filed challenging the directions to recover amounts which had been paid to him as pay and allowances excessively, from the DCRG payable to him. 2. The respondent entered the service as Second Grade Draftsman on 19.7.1983. The First Time Bound Higher Grade was sanctioned to him on 19.7.1993 on completion of 10 years of service. Thereafter, the respondent was appointed as First Grade Draftsman in the departmental quota, by direct recruitment through the Public Service Commission, on 11.7.1996. The Second Time Bound Higher 4 O.P.(KAT) No.255 of 2020 Grade was sanctioned to the respondent on 19.07.2001 on completion of 18 years of service, including the service rendered as Second Grade Draftsman. The Third Time Bound Higher Grade was sanctioned to the respondent on 18.07.2006 on completion of 23 years of service, again including the service rendered as Second Grade Draftsman. 3. An audit objection was raised regarding the grant of the Second and Third Time Bound Higher Grades on the reason that the respondent was appointed as First Grade Draftsman with effect from 11.07.1996 as per the advice of the Public Service Commission and hence the post of First Grade Draftsman should be treated as entry post for the further Time Bound Higher Grades. The respondent submitted his reply pointing out that he was appointed as First grade Draftsman as a departmental candidate and hence his entry post will remain as Second Grade Draftsman. It was also pointed out that even going by the audit objections there is no difference in the scale of increment and pay fixed. The respondent had challenged the inaction to take a decision on the audit objection by filing O.A.No.3037 of 2013 before the Tribunal, which was disposed of by Annexure A4 order dated 28.01.2014 directing the Chief Engineer of Public Works Department to consider and pass orders on the representation submitted by the 5 O.P.(KAT) No.255 of 2020 applicant, after hearing him. The respondent thereafter retired from service on 31.05.2015. The Chief Engineer as per Annexure A6 dated 19.03.2016, directed to cancel the Second and Third higher grades already granted to the respondent and to re-work the grant of higher grades, on the basis of completion of 10 years and 16 years of service with effect from the date on which the respondent was appointed as First Grade Draftsman. Annexure A6 was challenged by the respondent before the Tribunal and by Annexure A7 order dated 30.08.2017, the Tribunal allowed the original application and directed the Chief Engineer to pass fresh orders after hearing the respondent. It is thereafter that the Chief Engineer issued Annexure A8 order, wherein also the conclusion is the same as it was in Annexure A6. It is challenging Annexure A8 order that the respondent filed O.A.No.1365 of 2018 before the Tribunal. 4. The Tribunal by Ext.P8 order allowed the original application and set aside the order directing recovery of amounts paid to the respondent, relying on the judgment of the Hon'ble Supreme Court in **State of Punjab v. Rafiq Masih (White Washer)** reported in [(2015) 4 SCC 334]. Aggrieved by the order Ext.P8, the State and its Officers have filed this original petition. 6 O.P.(KAT) No.255 of 2020 5. Heard Sri B.Vinod, Senior Government Pleader on behalf of the petitioners and Sri P.Nandakumar, learned counsel for the respondent. 6. According to the learned Senior Government Pleader, the reliance placed by the Tribunal on the judgment in **Rafiq Masih** supra [(2015) 4 SCC 334] was not legally valid and the original petition ought to have been dismissed on the basis of the judgment of the Hon'ble Supreme Court in **High Court of Haryana and Punjab v Jagdev Singh** reported in [AIR 2016 SC 3523] wherein the Hon'ble Supreme Court had held that the principles laid down in **Rafiq Masih** supra [(2015) 4 SCC 334] will not apply in the cases of employees who have given an undertaking to the effect that excess amounts paid will be refunded. The learned counsel for the respondent pointed out that the above submission cannot be countenanced in the light of the fact that the Hon'ble Supreme Court in **Jagdev Singh** supra [AIR 2016 SC 3523] did not hold that the earlier judgment in **Rafiq Masih** supra [(2015) 4 SCC 334] was wrong and had only carved out a distinction in cases coming under the second criterion of employees noted in paragraph 18 of the judgment in **Rafiq Masih** supra [(2015) 4 SCC 334]. In **Rafiq Masih** supra [(2015) 4 SCC 334], the Hon'ble Supreme 7 O.P.(KAT) No.255 of 2020 ## Court held as follows: _“18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:_ _(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service)._ _(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery._ _(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued._ _(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, eventhough he should have rightfully been required to work against an inferior post._ _(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such extent, as would far outweigh the equitable balance of the employer's right to recover.”_ ## 7. In the subsequent decision in **Jagdev Singh** supra [AIR ## 2016 SC 3523] in paragraph 9 the Apex Court held as follows: _**“9.** The submission of the respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the State. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the respondent was clearly on notice of the fact that a future refixation or revision may warrant an adjustment of the excess payment, if any, made.”_ In paragraph 10 of the judgment, the Apex Court extracted paragraph 8 O.P.(KAT) No.255 of 2020 ## 18 of the judgment in **Rafiq Masih** supra [(2015) 4 SCC 334]. Thereafter in paragraph 11, the apex Court held as follows:- _**“11.** The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.”_ 8. The effect of the judgment in **Jagdev Singh** supra [AIR 2016 SC 3523] on the judgment in **Rafiq Masih** supra [(2015) 4 SCC 334] was considered by a Division Bench of this Court in the judgment in **State of Kerala and others** v. **Vinod Kumar C.R.** reported in [2020 (4) KLT 230]. In paragraph 7 of the judgment the Division Bench held as follows:- _“ …....... …....... …...... On a reading of both Rafiq Masih and Jagdev Singh, it is difficult for us to accept the contention of the learned Government Pleader that Jagdev Singh is a complete departure from the principles laid down in Rafiq Masih. From a reading of paragraphs 10 and 11 of Jagdev Singh, it appears to us that the Supreme Court had only clarified that in the case of recovery from retired employees or employees who are due to retire within one year of the order of recovery, there would be no bar in ordering recovery, if the employee concerned had executed an undertaking agreeing to refund any excess payment. We cannot read Jagdev Singh as having laid down the proposition that in every case where there is an undertaking as aforesaid, recovery can be ordered from the employee concerned whatever be the point of time that such payment was made. We cannot overlook the fact that there is not even a suggestion in Jagdev Singh that in the event of there being an undertaking to refund excess pay, none of the situations envisaged as items (i) to (v) of Rafiq Masih can be pressed into service._ 9 O.P.(KAT) No.255 of 2020 9. It can thus be seen that the Hon'ble Supreme Court did not interfere with the directions contained in paragraph 18 of the judgment in **Rafiq Masih** supra [(2015) 4 SCC 334] regarding clauses 1, 3, 4 and 5. In the case on hand, it can be seen from the facts narrated above that the mistake regarding the grant of Second and Third Time Bound Higher Grades occurred in 2001 and 2006 respectively. This was 14 and 9 years respectively prior to the retirement of the respondent. So also, the decision to cancel the Second and Third Time Bound Higher Grades granted to the respondent was finally taken only as per Annexure A8 order dated 25.01.2018, which was much after the retirement of the respondent. In the above circumstances, the dictum laid down in **Rafiq Masih** supra [(2015) 4 SCC 334] squarely applies to the facts of this case. The order for recovery is issued after the retirement of the respondent. The respondent belongs to Group C Class 3 category of employees and the recovery is ordered five years after the occurrence of the mistake as stipulated in **Rafiq Masih** supra [(2015) 4 SCC 334]. The judgment in **Jagdev Singh** supra [AIR 2016 SC 3523] has not in any way modified the above said conditions contained in the judgment in **Rafiq Masih** supra [(2015) 4 SCC 334]. We do not find any illegality or irregularity or impropriety in the order 10 O.P.(KAT) No.255 of 2020 Ext.P8 of the Tribunal. No grounds have been made out warranting interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. The original petition fails and the same is accordingly dismissed. In the circumstances of the case, there will be no order as to costs. Sd/- Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **T.R. RAVI, JUDGE** dsn 11 O.P.(KAT) No.255 of 2020 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE O.A.NO.1365/2018 ALONG WITH ANNEXURES** **ANNEXURES:** - **ANNEXURE-A1 TRUE COPY OF AUDIT OBJECTIONS AGAINST THE RESPONDENT** - **ANNEXURE-A2 TRUE COPY OF REPLY DATED 30.08.2008** - **ANNEXURE-A3 TRUE COPY OF REPRESENTATION DATED 03.05.2013** - **ANNEXURE-A4 TRUE COPY OF ORDER DATED 28.01.2014 IN O A NO.3037 OF 2013** - **ANNEXURE-A5 TRUE COPY OF GRATUITY PAYMENT ORDER DATED 05.10.2015** - **ANNEXURE-A6 TRUE COPY OF ORDER NO.E.B.3(A) 2660/13 OF THE 2ND PETITIONER DATED 19.03.2016** - **ANNEXURE-A7 TRUE COPY OF ORDER IN OA 896 OF 2016 DATED 30.08.2017** - **ANNEXURE-A8 TRUE COPY OF THE ORDER NO.EB7/2660/2013 DATED 25.01.2018 ISSUED BY THE 2ND PETITIONER** - **EXHIBIT P2 TRUE COPY OF INTERIM ORDER DATED 24.07.2018 OF THE KERALA ADMINISTRATIVE TRIBUNAL** - **EXHIBIT P3 TRUE COPY OF REPLY STATEMENT ON 2.11.18 BY THE THIRD PETITIONER HEREIN IN THE ORIGINAL APPLICATION** - **EXHIBIT P4 TRUE COPY OF REPLY STATEMENT FILED ON 01.01.2019 BY THE SECOND PETITIONER ALONG WITH ANNEXURES HEREIN IN THE ORIGINAL APPLICATION** 12 O.P.(KAT) No.255 of 2020 - **ANNEXURE R2 (A) ARE ALREADY PRODUCED AS ANNEXURE A6 AND AND R2 (B) ANNEXURE A7** - **ANNEXURE R2(C) TRUE COPY OF LETTER NO.EB7-2660/2013 DATED 14.11.2017** - **ANNEXURE R2(D) TRUE COPY OF LETTER NO.PWD-A3/292/2017-PWD DATED 04.01.2018** - **ANNEXURE R2(E) TRUE COPY OF LETTER NO.A1-728/2016 DATED 26.10.2018 OF THE EXECUTIVE ENGINEER, NH DIVISION, ALAPPUZHA** **EXHIBIT P5 TRUE COPY OF REPLY STATEMENT FILED ON 25.02.2019 BY THE FIRST PETITIONER ALONG WITH ANNEXURES HEREIN IN THE ORIGINAL APPLICATION** - **ANNEXURE R1(A) IS ALREADY PRODUCED AS ANNEXURE A6 ANNEXURE R1(B) IS ALREADY PRODUCED AS ANNEXURE A7 ANNEXURE R1(C) IS ALREADY PRODUCED AS ANNEXURES R2(C) ANNEXURE R1(D) IS ALREADY PRODUCED AS ANNEXURES R2(D) ANNEXURE R1(E) IS ALREADY PRODUCED AS ANNEXURES R2(E)** - **EXHIBIT P6 TRUE COPY OF REJOINDER FILED BY THE RESPONDENT ALONG WITH ANNEXURES ON 11.06.019 TO THE REPLY STATEMENT OF FIRST PETITIONER** - **ANNEXURE A9 TRUE COPY GO (P) NO.480/89/FIN DATED 01.11.1989** - **ANNEXURE A10 TRUE COPY OF LETTER NO.GE7/C/A-189/774 ISSUED BY THE ACCOUNTS OFFICER, THRISSUR DATED 21.07.2008** - **EXHIBIT P7 TRUE COPY OF REPLY STATEMENT FILED ON 15.07.2019 BY THE FOURTH PETITIONER HEREIN IN THE ORIGINAL APLICATION** - **EXHIBIT P8 TRUE COPY OF THE ORDER OF THE KERALA** 13 O.P.(KAT) No.255 of 2020 **ADMINISTRATIVE TRIBUNAL DATED 29.08.2019 IN THE AFORESAID ORIGINAL APPLICATION** **EXHIBIT P9 TRUE COPY OF THE FORM OF OPTION AND UNDERTAKING EXECUTED BY THE RESPONDENT ON 05.01.1999** **EXHIBIT P10 TRUE COPY OF THE FORM OF OPTION AND UNDERTAKING EXECUTED BY THE RESPONDENT ON 10.04.2006** **EXHIBIT P11 TRUE COPY OF THE FORM OF OPTION AND UNDERTAKING EXECUTED BY THE RESPONDENT ON 19.07.2006**