P. Harikumar vs Travancore Devaswom Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 11[TH] DAY OF MARCH 2022 / 20TH PHALGUNA, 1943** ## **WP(C) NO. 27070 OF 2021** ## **PETITIONER/S:** P.HARIKUMAR AGED 59 YEARS S/O. PRABHAKARAN NAIR, NALUPARA KRISHNA NIVAS, PKAKKAZHAM, AMBALAPUZHA, ALAPPUZHA 688 005 BY ADV D.AJITHKUMAR ## **RESPONDENT/S:** - 1 TRAVANCORE DEVASWOM BOARD DEVASWOM BOARD HEAD QUARTERS, NATHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM 695 003 REPRESENTED BY ITS SECRETARY - 2 SECRETARY TRAVANCORE DEVASWOM BOARD, DEVASWOM BOARD HEAD QUARTERS, NATHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM 695 003 - 3 DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHENCODE, THIRUVANANTHAPURAM, PIN 695 003 - 4 DEPUTY DEVASWOM COMMISSIONER, PENSION AND SERVICE GRIEVANCE REDRESSAL CELL, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHENCODE, THIRUVANANTHAPURAM, PIN 695 003 - 5 DEVASWOM ACCOUNTS OFFICER DEVASWOM ACCOUNT OFFICE, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHENCODE, THIRUVANANTHAPURAM, PIN 695 003 - 6 DEPUTY DEVASWOM COMMISSIONER, ADMINISTRATION, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHENCODE, THIRUVANANTHAPURAM, PIN 695 003 BY ADV SRI.C.K.PAVITHRAN, SC, TDB ## **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION** **ON 11.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.27070 of 2021 -2- ## **JUDGMENT** Dated this the 11[th] day of March, 2022 The petitioner entered the service of the Travancore Devaswom Board as part-time Kazhakom on 15.03.1993. While continuing in service, he was deputed as Departmental Nominee to work as Kazhakom in various temples. The petitioner raised a claim that the period he had worked as Departmental Nominee should also be reckoned as regular service for the purpose of computing his service benefits. Though Ext.P2 order, the claim was allowed, later the order was reversed by the Board. In the meanwhile, the petitioner retired from service on 30.06.2018. By Ext.P3 order, the petitioner was paid his gratuity after deducting an amount of Rs.2,71,965/-, alleged to be the excess pay and allowances received by the petitioner, pertaining to the period he had W.P.(C) No.27070 of 2021 -3- worked as Departmental Nominee. Aggrieved by the deduction, the petitioner approached the Devaswom Ombudsman and obtained Ext.P7 order. Relevant portion of the order reads as under; _“Liaison Officer-In-Charge is present._ _2. In the above matter, the Board has passed an Order extending the benefit of treating the Karazhma service also for the purpose of pension, as in the case of Shri Sivadasa Wariar. But the Board by its Order dated 16.01.2019 also, canceled the Order passed by the Devaswom Commissioner in ROC No.3715/19/Mis C dated 24.3. 2012 with retrospective effect, that too in the case of the petitioner after his retirement while considering his review for pensionary benefits. There is no mistake or fraud committed by the employee in the matter of getting the service benefits. It was paid based on an Order passed by the Commissioner and all along he enjoyed the monetary benefits given to him, adjusted his affairs based on the income he received. In such circumstances, how the Board could recover the amount several years after the benefit was conferred on him, that too retrospectively after his retirement arises_ W.P.(C) No.27070 of 2021 -4- _for consideration, leave alone the legality of the Order passed by the Commissioner. As the above action of the Board appears, prima facie, not sustainable, I request the Board to place on record their stand in the matter before final Orders are passed._ _The case is posted to 10.12.2020 at 10.30 AM.”_ 2. In terms of the Ombudsman's observations and the decision of the Honourable Apex Court in ## _**State of Punjab v. Rafiqu Masih (White Washer)**_ _**[2015 (1) KLT 429 (SC)],**_ the Devaswom Board issued Ext.P8 order, holding that the excess salary and allowances received by the petitioner need not be recovered. Based on Ext.P8 decision, the complaint filed by the petitioner was closed by the Ombudsman. 3. The petitioner is aggrieved by the fact that, despite Ext.P7 order of the Ombudsman and Ext.P8 order of the Travancore Devaswom Board itself, the balance amount of gratuity due to him is being withheld. Learned Counsel for the W.P.(C) No.27070 of 2021 -5- petitioner relied on the decision of the Supreme Court in _**Rafiqu Masih**_ and the Division Bench decision of this Court in _**KSFE v. Unnikrishnan**_ _**Nair [2022 (1) KLT 807]**_ to contend that the gratuity of an employee is not liable to be attached towards any liability or excess payment. 4. Learned Standing Counsel for the respondent Board relied on Ext.R1(a) consent letter dated 22.06.2019 issued by the petitioner to contend that, having consciously consented for recovery of excess amount if any paid, the petitioner cannot turn around and challenge the recovery effected from his DCRG. According to the learned Counsel, if the petitioner is aggrieved the Board's decision, his remedy is to approach the civil court. 5. Indisputably, the Board had decided not to recover the excess salary received by the petitioner. Therefore, the short question is W.P.(C) No.27070 of 2021 -6- whether, based on Ext.R1(a) undertaking, the Board can seek to withhold his DCRG. In this context, learned Standing Counsel for the Board has relied on paragraph 11 of the decision in _**High Court of Punjab and Haryana and others v. Jagdev Singh [2016(14) SCC 267],**_ extracted herein; _“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.”_ A careful scrutiny of the facts of the above case would show that, therein the officer to whom payment was made in the first instance was clearly put on notice that any payment found to have been made in excess would be required to be refunded and the officer had furnished an undertaking while opting for the revised pay scale. The facts of the case at hand is W.P.(C) No.27070 of 2021 -7- entirety different, inasmuch as the petitioner was never put on notice that the amounts paid to him for the work he had done as Departmental Nominee would be liable to be refunded. On the other hand, by Ext.P2, the Board had initially regularised the service for the aforementioned period. Even though that order was later revised, the Board had undertaken before the Ombudsman that no recovery would be effected. In such circumstances, the fact that the petitioner had submitted a consent letter is of no consequence. The effect of a consent letter as against the provisions of the Gratuity Act was considered by the Division Bench in _**Unnikrishnan Nair**_ , _(supra),_ the relevant portion of which reads as under; _“10. Section 14 makes the provisions of the Act effective, notwithstanding anything inconsistent with the provisions, in any enactment or any instrument or contract having effect by virtue of any enactment other than the Gratuity Act. The applicability of Payment of Gratuity Act with respect to an_ ## W.P.(C) No.27070 of 2021 -8- _establishment having its own service regulations containing a provision for withholding of gratuity had come up for consideration before the Honourable Supreme Court in Y.K.Singla v. Punjab National Bank [(2013) 3 SCC 472], the relevant portion of which is extracted hereunder:-_ _“20. .......A perusal of S.14 leaves no room for any doubt, that a superior status has been vested in the provisions of the Gratuity Act, vis - a - vis, any other enactment (including any other instrument or contract) inconsistent therewith. Therefore, insofar as the entitlement of an employee to gratuity is concerned, it is apparent that in cases where gratuity of an employee is not regulated under the provisions of the Gratuity Act, the legislature having vested superiority to the provisions of the Gratuity Act over all other provisions/enactments (including any instrument or contract having the force of law), the provisions of the Gratuity Act cannot be ignored. The term “instrument” and the phrase “instrument or contract having the force of law” shall most definitely be deemed to include the 1995 Regulations, which regulate the payment of gratuity to the appellant.”_ _Hence, the fact that KSRTC has been exempted from the provisions of the Gratuity Act or the fact that the petitioner had given consent for effecting recovery from DCRG would not, either entitle the employer to withhold his DCRG or enable the appellant to effect recovery.”_ The law on point being as above, I am unable to subscribe to the contention that Ext.R1(a) consent letter takes away the petitioner's right W.P.(C) No.27070 of 2021 -9- to get the eligible gratuity due to him. In the result, this writ petition is allowed. The first respondent is directed to pay the balance amount of gratuity due to the petitioner within three months of receipt of a copy of this judgment, failing which the amount of gratuity will carry interest at the rate of 8% from the first day of the next month of the petitioner's retirement. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.27070 of 2021 -10- ## **APPENDIX OF WP(C) 27070/2021** PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF THE MEMO DATED 15-03-1993 ISSUED BY THE RESPONDENT BOARD - Exhibit P2 TRUE COPY OF THE ORDER AS PEER VIDE ROC NO. 3715/19/MIS DATED 24-03-2012 ISSUED BY 3RD RESPONDENT - Exhibit P3 TRUE COPY OF THE ORDER DATED NIL AUGUST 2017 ISSUED BY 5TH RESPONDENT. - Exhibit P4 TRUE COPY OF THE ORDER OF THE 5TH RESPONDENT DATED 27-08-2019 VIDE DA NO 3902/19/D1 GRANTING COMMUTED VALUE OF PENSION - Exhibit P5 TRUE COPY OF THE OFFICE ORDER VIDE DA NO. 3902/19/D1 DATED 27-08-2019 ISSUED 5TH RESPONDENT DIRECTING IN MANAGER, DHANALEKSHMI BANK LTD, NANTHENCODE TO DISBURSE RS. 2,10,504/-/ - Exhibit P6 TRUE COPY OF THE ORDER DATED 27-082019 VIDE D.A NO. 3902/19/D1 ISSUED BY 5TH RESPONDENT SANCTIONING PAYMENT OF PENSION OF RS. 12,280/- PER MENSUM - Exhibit P7 TRUE COPY OF THE ORDER PASSED BY THE HON'BLE OMBUDSMAN FOR TRAVANCORE AND COCHIN DEVASWOM BOARDS ON 16-10-2020 IN COMPLAINT NO 1 OF 2020 - Exhibit P8 TRUE COPY OF THE ORDER OF THE TRAVANCORE DEVASWOM BOARD DATED 08-072021 Exhibit P9 TRUE COPY OF THE ORDER DATED 18-082021 IN COMPLAINT NO. 1 OF 2020 OF THE HON'BLE OMBUDSMAN FOR TRAVANCOIRE AND COCHIN DEVASWOM BOARDS.