High Court of KeralaSingle JudgeWrit petition disposed; interim direction absol...

P.J. Roy and others v. State of Kerala and others

Case / Petition Number:WP(C).No. 2930 of 2008 (W)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C.K. Abdul Rehim
Judgment Date
2013-01-30
Court Decision / Holding
Writ petition disposed; interim direction absolute. The court held that crediting of DA arrears in the Provident Fund Account attracts deduction under Section 192 of the Income Tax Act, applying the Lilly George (DB) principle that salary includes salary due whether paid or not. Recovery is to be made from the DA arrears credited, and employees are entitled to credit only the net amount after such deduction. The interim directive issued on 24.1.2008 is affirmed, and the petition is closed with the interim direction made absolute.
Final Disposition
Writ petition disposed; interim direction absolute; interim order upheld; tax deduction from PF credit confirmed.

Parties to the Case

Appellants / Petitioners

  • P.J. Roy
  • Francis P. Joseph
  • Job Ainyara
  • Reena J. Andrews
  • Daisy.K.T.
  • George Valluvacherry
  • Geetha.M.S
  • Sobhana Michael.K.
  • Beena.P.J.
  • K.V.Nilakkanta Varma
  • C.I.James
  • Valentina D'Cruz
  • Alice.P.M.
  • Wilson Gomez
  • George.E.K.
  • James Joseph
  • Alex.A.V.
  • Edwin Xavier
  • V.J.Peter
  • Usha John
  • N.V.Joshy
  • Mary Jethrudh.K.V.
  • Dr.V.Nandanann
  • George John
  • Raju.P.
  • Rose Philo.K.J.
  • Sankar.P.D.
  • Sallyamma Job
  • Miniamma.K.C.
  • Joy Sleeba
  • Mary Grace.T.J.
  • Anandan.G.
  • Paul Joseph
  • P.J.Jacob
  • P.T.C. Titus
  • N.R.Augustine Jude
  • Edwin Joseph
  • Victor George

Respondents

  • State of Kerala represented by the Principal Secretary to General Finance Department, Government Secretariat, Thiruvananthapuram
  • Director of Collegiate Education, Thiruvananthapuram
  • Deputy Director of Collegiate Education, Ernakulam
  • Director of Treasuries, Thiruvananthapuram
  • District Treasury Officer, Ernakulam
  • Addl. Sub-Treasury Officer, Ernakulam
  • St. Paul’s College, Kalamassery represented by its Manager Fr. Jose Chilayara

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri Shaijan C. George

Counsels for Respondents

  • • Sri P.P. Padmalayan

Case Synopsis & Summary

This writ petition challenges the crediting of entire DA arrears to the Provident Fund (PF) account of employees of St. Paul’s College, Kalamassery, without deduction of income tax under Section 192 of the Income Tax Act. The Kerala High Court, following a Division Bench decision in Lilly George and others (2010 (3) KHC 725 (DB)), held that salary includes any salary due, whether paid or unpaid, and consequently the crediting of DA arrears to PF would attract the tax deduction under Section 192. The court notes that an interim order dated 24 January 2008 required the respondents to ensure sufficient funds for income tax payment, and only the balance ought to be credited to PF. In light of the settled legal position, the petition is resolved with no further issue to be determined. The court ultimately closes the writ petition, making the interim direction absolute, and confirms that recovery must be from the DA arrears credited, with employees receiving only the net amount after tax deduction. The judgment aligns with the established principle that salary income includes arrears due, requiring withholding of tax at source before PF credit.

Provisions of Law Cited

Section 192 of the Income Tax Act

Legal Doctrines & Maxims

  • Salary includes any salary due, whether paid or not (as held in Lilly George and others)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petition challenges the crediting of the entire Dearness Allowance (DA) arrears to the Provident Fund (PF) account without deduction of income tax u/s 192, arguing that no netting or tax withholding should apply to PF credits and seeking protection of full arrears credit to PF. The interim directive of 24 January 2008 required authorities to ensure funds for income tax payment before PF credit, implying that tax liabilities must be settled ahead of provident fund credits. The petition relies on the settled principle that salary includes salary due, whether paid or unpaid, which would imply tax deduction arises on the DA arrears credited to PF.

Contentions of Respondents

The respondents contend that, following the settled legal position, income from salary includes salary due, even if unpaid, and therefore crediting DA arrears to PF attracts deduction under Section 192 of the Income Tax Act. They argue the interim order correctly provided for tax payment, and that the net credit to PF after tax deduction is the proper statutory remedy. The respondent’s position is anchored in the Lilly George decision (DB) and the need to ensure tax compliance before PF credit, arguing for netting of due amounts after deduction.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
State of Kerala and others v. Lilly George and others2010(3) KHC 725 (DB)PositiveCited to support the proposition that salary includes salary due and that DA arrears credited to PF are subject to tax deduction under Section 192; the decision is used as controlling authority for the court’s reasoning.

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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 C.K.ABDUL REHIM** ## **WEDNESDAY, THE 30TH DAY OF JANUARY 2013/10TH MAGHA 1934** ## **WP(C).No. 2930 of 2008 (W)** **--------------------------** ## **PETITIONER(S) :** - **--------------------------** **1. P.J.ROY, S/O.P.R.JACOB, AGED 53 YEARS, PRINCIPAL, ST.PAUL'S COLLEGE, KALAMASSERY.** **2. FRANCIS P.JOSEPH, S/O.P.P.JOSEPH, AGED 52 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **3. JOB ANIYARA, S/O.A.E.JOSEPH, AGED 53 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **4. REENA J. ANDREWS, D/O.JIMMY ANDREWS, AGED 46 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **5. DAISY.K.T., D/O.K.A.THOMAS, AGED 46 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **6. GEORGE VALLUVACHERRY, S/O.V.O.GEORGE, AGED 46 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **7. GEETHA.M.S, D/O.M.K.SANOO, AGED 47 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **8. SOBHANA MICHAEL.K., D/O.K.F.MICHAEL, AGED 44, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **9. BEENA.P.J., D/O.P.V.JOSEPH, AGED 43 YEARS, LECTURER, SENIOR SCALE ST.PAUL'S COLLEGE, KALAMASSERY.** **10. K.V.NILAKKANTA VARMA, S/O.D.VASUDEVA MOOSATHU, AGED 50 YEARS, LECTURER SELECTION GRADE, ST.PAUL'S COLLEGE, KALAMASSERY.** **...2/-** ## **WP(C).No. 2930 of 2008 (W) -2-** **11. C.I.JAMES, S/O.C.C.IGNATIUS, AGED 50 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **12. VALENTINA D'CRUZ, D/O.AUGUSTINE D'CRUZ, AGED 42 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **13. ALICE.P.M., D/O.JOSEPH, AGED 50 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **14. WILSON GOMEZ, S/O.LAWRANCE GOMEZ, AGED 53 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **15. GEORGE.E.K., S/O.KUNJUNNI.E.A., AGED 50 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **16. JAMES JOSEPH, S/O.P.C.OUSEPH, AGED 50 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **17. ALEX.A.V., S/O.LATE A.O.VARKEY, AGED 51 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **18. EDWIN XAVIER, S/O.P.J.XAVIER, AGED 47 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **19. V.J.PETER, S/O.V.P.JOSEPH, AGED 45 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **20. USHA JOHN, D/O.V.J.JOHN, AGED 51 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **21. N.V.JOSHY, S/O.N.A.VARGHESE, AGED 47 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **22. MARY JETHRUDH.K.V., D/O.K.T.VARGHESE, AGED 45 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **23. DR.V.NANDANAN, S/O.K.VELAYUTHAN, AGED 54 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **...3/-** ## **WP(C).No. 2930 of 2008 (W) -3-** **24. GEORGE JOHN, S/O.A.V.JOHN, AGED 49 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY. 25. RAJU.P., S/O.K.C.PARAMESWARAN PILLAI, AGED 49 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY. 26. ROSE PHILO.K.J., D/O.K.V.JOSEPH, AGED 46 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY. 27. SANKAR.P.D., S/O.P.DAMODARAN, AGED 53 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY. 28. SALLYAMMA JOB, D/O.V.C.JOB, AGED 48 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY. 29. MINIAMMA.K.C., D/O.K.S.CLETUS, AGED 52 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY. 30. JOY SLEEBA, S/O.P.K.SLEEBA, AGED 54 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY. 31. MARY GRACE.T.J., D/O.T.B.JOSEPH, AGED 50 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY. 32. ANANDAN.G., S/O.GRAHARY, AGED 49 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY. 33. PAUL JOSEPH, S/O.P.P.JOSEPH, AGED 51 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY. 34. P.J.JACOB, S/O.JOSEPH, AGED 52 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY. 35. P.T.C. TITUS, S/O.P.T.CHAWTHAR, AGED 52 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY. 36. N.R.AUGUSTINE JUDE, S/O.N.T.RAPHAEL, AGED 50 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **...4/-** ## **WP(C).No. 2930 of 2008 (W) -4-** **37. EDWIN JOSEPH, S/O.P.D.JOSEPH, AGED 49 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **38. VICTOR GEORGE, S/O.V.V.MICHAEL, AGED 46 YEARS, LECTURER, SELECTION GRADE ST.PAUL'S COLLEGE, KALAMASSERY.** **BY ADVS.SRI.SHAIJAN C.GEORGE** **RESPONDENT(S) :** - **----------------------------** ## **1. STATE OF KERALA, REPRESENTED BY** - **THE PRINCIPAL SECRETARY TO GENERAL FINANCE DEPARTMENT,** - **GENERAL SECRETARIAT, THIRUVANANTHAPURAM.** - **2 . THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM.** **3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM.** **4. THE DIRECTOR OF TREASSURIES, THIRUVANANTHAPURAM.** **5. DISTRICT TREASURY OFFICER, ERNAKULAM.** **6. ADDL.SUB-TREASURY OFFICER, ERNAKULAM.** **7. ST.PAUL'S COLLEGE, KALAMASSERY REPRESENTED BY ITS MANAGER FR.JOSE CHILAYARA.** **R1 TO R6 BY GOVT. PLEADER (FINANCE) SRI. P.P. PADMALAYAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...5/-** ## **WP(C).No. 2930 of 2008 (W)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT.P1 : COPY OF ORDER G.O.(P) NO. 38/07 (33) FIN. DATED 31-1-2007.** **EXT.P2 COPY OF DATED 4-2-2005 IN WP(C) NO. 4534/05 HIGH COURT OF KERALA.** ## **RESPONDENT'S EXHIBITS : NIL** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## C.K.ABDUL REHIM,J. --------------------------------WP(C).NO. 2930 of 2008 --------------------------------Dated this the 30th day of January, 2013 ## JUDGMENT Challenge raised in this writ petition is against crediting of entire DA arrears to the Provident Fund Account, without deducting income tax, under section 192 of the Income Tax Act. The question now stands covered through decision of a Division Bench of this court in **State of Kerala and others vs. Lilly George and others 2010(3) KHC 725 (DB).** This court held that, income under the head 'salary' includes any salary due whether paid or not. Therefore it is held that crediting of DA arrears in the Provident Fund Account will attract deduction contemplated under section 192. Therefore it is observed that, recovery has to be necessarily made from the DA arrears credited and the employees are entitled for credit only the net amount after such deduction. 2. In the case at hand this court had issued an interim order on 24.1.2008 directing the respondents to see that WP(C).2930 /2008 2 sufficient amounts are made available to the petitioners for payment of income tax and only the balance shall be credited to the Provident Fund Account. In view of the said direction and in view of the settled legal position, no further issue survives for consideration. Accordingly the writ petition is closed making the interim direction absolute. C.K.ABDUL REHIM, JUDGE pmn/ WP(C).2930 /2008 3