High Court of KeralaDivision Bench2016-11-09Writ Appeal allowed by Division Bench of Kerala...

P.A. Paulose v. State of Kerala and Others

Case / Petition Number:WA 1506 of 2016

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Mohan M. Shantanagoudar
Sathish Ninan
Judgment Date: 2016-11-09
Court Decision / Holding: The impugned judgment and Ext. P7 are set aside. The appellant is entitled to pensionary benefits, and the amounts already recovered from his pension shall be refunded to him by the respondents. The Writ Appeal is allowed.
Final Disposition: Writ Appeal allowed by Division Bench of Kerala High Court against the judgment in WP(C) 23241/2012

Parties to the Case

Appellants / Petitioners

P.A. Paulose (Retd. Senior Superintendent)

Respondents

State of Kerala
M/S. Syndicate Bank (Vaduthala Branch, Kochi)
The Regional Manager, M/S Syndicate Bank, Pioneer Towers, Marine Drive, Kochi

Legal Representation & Advocates

Counsels for Petitioners

• P.A. Paulose (Party in Person)

Counsels for Respondents

• Sri M.A. Asif
• Sri R.S. Kalkura

Case Synopsis & Summary

This writ appeal challenges the 04-04-2013 judgment in WP(C) No. 23241 of 2012, which upheld recovery of an overpayment of pension from the petitioner, P. A. Paulose, a retired senior government employee. Paulose retired as Senior Superintendent (Health Department, Homeopathy) in 2005. His pension was revised in 2007 and again in 2009; he received arrears and continued to draw pension assuming entitlement. In 2012 an Accountant General report alleged an excess pension payment of Rs 71,992, allegedly disbursed by the Syndicate Bank, leading to recovery from his pension across 21 installments totaling Rs 73,500. He also received a gratuity of Rs 10,901 as the bank closed his loan account. The petitioner challenged Ext. P7 and the earlier orders, arguing that the recovery was improperly justified and that the record did not reveal reasons for the excess payment. The case highlighted that due to his age, he is working as a night watchman; his 2011 pay revision remained unpaid; the court examined the guidance in State of Punjab v. Rafiq Masih (White Washer), which enumerates situations where recovery from retirees is impermissible. The High Court concluded that the recovery was iniquitous and arbitrary, set aside the impugned judgment, and directed refund of the amount recovered, restoring pension rights pending further proper action. The writ appeal was allowed.

Legal Doctrines & Maxims

Recovery from retired employees or employees who are due to retire within one year of the order of recovery is impermissible (State of Punjab v. Rafiq Masih)
Recovery from employees when the excess payment has been made for a period in excess of five years is impermissible
Recovery would be iniquitous or harsh or arbitrary to such an extent as to outweigh the equitable balance in favor of the employer’s right to recover

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the recovery of Rs 71,992 and the subsequent recovery from his pension is unjustified as the excess payment was not adequately established, and there is a lack of transparent reasoning in the Accountant General’s action. Given his age and ongoing livelihood challenges, enforcing recovery from pensionary benefits appears harsh and disproportionate. He notes that 2011 pay revision benefits have not been extended to him and that the bank’s and AG’s conclusions were not grounded in a proper audit of records. He urges refund of already recovered sums and restoration of his pension rights, relying on legal principles requiring scrutiny of hardship and equity in recovery from retirees, as articulated in the cited Supreme Court decision (Rafiq Masih).

Contentions of Respondents

The respondents argued that recovery is a corrective measure to recover overpayments caused by miscalculations in pension disbursement. The Accountant General’s order and Ext. P7 were issued to rectify an error and ensure financial propriety. They contend that the bank’s disbursement records indicated excess payment and that recovery is legally permissible to preserve public funds and ensure accountability.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Punjab and others v. Rafiq Masih (White Washer)	2015 AIR SCW 501	Positive	The Supreme Court decision is cited to illustrate that recoveries from retirees can be impermissible in certain circumstances, particularly where recovery would be harsh, iniquitous, or would outweigh the equitable balance, including guidelines about recoveries from retirees.

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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 THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR & THE HONOURABLE MR. JUSTICE SATHISH NINAN WEDNESDAY, THE 9TH DAY OF NOVEMBER 2016/18TH KARTHIKA, 1938 WA.No. 1506 of 2016 IN WP(C).23241/2012 -------------------------------------------AGAINST THE JUDGMENT IN WP(C) 23241/2012 DATED 04-04-2013 ........................ APPELLANT//PETITIONER : ------------------------------ P.A.PAULOSE (RETD. SENIOR SUPERINTENDENT, HIGHER GRADE), AGED 66 YEARS, PUTHIYEDATH HOUSE, CHENGOTHKUNNU, KOONAMAVU, KOCHI- 683 015 BY SRI. P.A.PAULOSE (PARTY IN PERSON) RESPONDENTS/RESPONDENTS : ------------------------------------ 1. STATE OF KERALA REP. BY THE ACCOUNTANT GENERAL ( A & E) KERALA, M.G. ROAD, TRIVANDRUM- 695 039 2. M/S. SYNDICATE BANK REP. BY THE MANANGER, VADUTHALA BRANCH, VADUTHALA, KOCHI- 682 023 ## 3. THE REGIONAL MANAGER M/S SYNDICATE BANK, PIONEER TOWERS, MARINE DRIVE, KOCHI- 682 031 R1 BY SR.GOVERNMENT PLEADER, SRI.M.A. ASIF R2 & R3 BY SRI.R.S.KALKURA, SC. SRI. GEORGE POONTHOTTAM, AMICUS CURIAE THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Mohan M. Shantanagoudar, C.J. & Sathish Ninan, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No. 1506 of 2016 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of November, 2016 ## **JUDGMENT** ## **Mohan M. Shantanagoudar, C.J.** The judgment dated 04.04.2013 in W.P.(C) No. 23241 of 2012 is called in question in this appeal by the appellant/writ petitioner. 2. The appellant is a pensioner who retired as Senior Superintendent from the Health Department (Homeopathy) on 31.03.2005. His pension was fixed in the year 2007 and was given `83,640/- as arrears from 2005 to 2007. Till June, 2008 the pension was drawn by the appellant from State Treasury, Aluva for a sum of `2020/- with 64% DA instead of 67% DA. In the month of June 2008, his pension was transferred to the Syndicate Bank, Vaduthala as is clear from Ext.P2. Appellant's pension was revised from `2020/- to `4207/- as basic by Ext.P3 order dated 17.12.2009. As a result, the appellant was given arrears of pension to the tune of `1,29,000/-. Subsequently, WA 1506/2016 -:2:- the appellant took a loan of `1,35,000/- and such loan amount was redeemed from the appellant at Rs.3134/- per month and the loan account was closed on 19.09.2012. It is the case of the appellant that though the pension was further revised to the basic of `4361/- and amounts were paid accordingly to other pensioners, he was not deemed with the benefit of such revised pension on the ground that he has drawn excess amount of pension from the Bank. Ext.P7 dated 23.07.2012 issued by the Indian Audit and Accounts Department, Office of the Accountant General(A&E), Kerala discloses that the Bank disbursed excess pension to the tune of `71,992/- and that the appellant had received the same, which is liable to be refunded as per rules. 3. Thereafter, the respondents started recovery from the pension account of the appellant at the rate of `3,500/- and completed recovery in 21 installments, i.e. a total amount of `73,500/- was recovered. However, the Bank released `10,901/- towards Gratuity and Commutation of the appellant. WA 1506/2016 -:3:- 4. Aggrieved by Ext.P7 order directing recovery of `71,992/-, the appellant approached this Court by filing W.P.(C) No.26562 of 2011 which was disposed of directing the respondents to verify the accounts statement and find out the eligible amount within two months. Since no action was taken, Contempt Petition was moved by the appellant and ultimately, the Accountant General's office conducted hearing on 26.07.2012. Again the Accountant General has not changed its earlier order relating to recovery of `71,992/-. 5. Having no other alternative, the appellant again approached this Court by filing W.P.(C) No.23241 of 2012 which came to be disposed of by the impugned judgment. 6. It is brought to the notice of the Court by the learned Amicus Curiae that due to lack of sufficient funds to meet the needs, the appellant is working as a 'Night Watchman' in Eastern group of factories and in an estate situated at Adimali. The pay revision benefits of 2011 is denied to him and no amount has been disbursed to him so far. WA 1506/2016 -:4:- 7. We do not find any reason in the order of the Accountant General or any of the records produced by the Bank in the counter affidavit as to how the respondents came to the conclusion that an excess amount of `71,992/- has been disbursed to the appellant towards pension. It is not open for the respondents to simply come to an abrupt conclusion without assigning appropriate reasons. 8. Be that as it may, the appellant is already aged about 65 years and he is now stated to be working as a Night Watchman in Eastern group of factories to eke out his livelihood. In the meanwhile, the so called excess amount has been recovered from the pensionary benefits of the appellant. 9. In our considered opinion, respondents ought not to have recovered the alleged excess payment, if any, made in favour of the appellant herein while disbursing pension. 10. The Apex Court, in the case of **State of Punjab and others v. Rafiq Masih (White Washer)** [2015 AIR SCW 501], after considering the judgments on the point, has concluded in WA 1506/2016 ## -:5:- ## paragraph 12 as follows : “12. 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 hereinabove, 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 ClassIV 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, even though 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 employees, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to ” recover. Item No.2 of paragraph 12 clearly debars the authorities to recover from retired employees or employees who are due to WA 1506/2016 ## -:6:- retire within one year of the order of recovery. So also, it is not open for the respondents to recover from a retired employee, if such recovery would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover. 11. In the matter on hand, the appellant is admittedly a pensioner. The excess amount, allegedly paid to him in the form of pension, is sought to be recovered and is already recovered, which is against the dictum laid down by the Apex Court mentioned supra. So also, this Court, based on materials on record, concludes that the recovery already made from the pensioner is iniquitous, harsh and arbitrary to such an extent, it would far outweigh the equitable balance of the employer's right to recover. 12. In view of the same, the impugned judgment of learned single Judge and consequential order at Ext.P7 are liable to be set aside. Accordingly, they stand set aside. The appellant is entitled to pensionary benefits, and the amounts WA 1506/2016 -:7:- already recovered from his pension shall be refunded to him by the respondents. The Writ Appeal is allowed. Before parting with the judgment, we place on record the valuable assistance rendered by the learned _Amicus Curiae_ in deciding this matter. Sd/- **Mohan M. Shantanagoudar, Chief Justice. Sathish Ninan, Judge.** Sd/- ttb/10/11