High Court of KeralaSingle Judge2022-06-16Writ petition disposed; directs Ext.P9 to be co...

S. Rajalal v. Kerala State Road Transport Corporation

Case / Petition Number:WP(C) NO. 15863 OF 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2022-06-16
Court Decision / Holding: Writ petition disposed of with directions; the competent KSRTC authority is directed to take up Ext.P9 and hear the petitioner, and dispose of Ext.P9 within two months from receipt of the copy of the judgment. If Ext.P9 is decided in the petitioner’s favour, there shall be no recovery; if otherwise, any recovery must be examined under the principles in Rafiq Masih (para 12(3)) and implemented accordingly. Any amount found recoverable must be paid to the petitioner within one month thereafter. The order to be communicated promptly to the petitioner so he may take necessary steps.
Final Disposition: Writ petition disposed; directs Ext.P9 to be considered and decided within two months; contingent recovery decisions to follow under Rafiq Masih; interim release of withheld amounts if not recoverable, otherwise payment within one month after disposition.

Parties to the Case

Appellants / Petitioners

S. Rajalal

Respondents

Kerala State Road Transport Corporation (Head Office, Transport Bhavan, Thiruvananthapuram; represented by its Managing Director)
The Executive Director (Administration), KSRTC, Transport Bhavan, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• Biju Balakrishnan

Counsels for Respondents

• Smt. Rajanandhini, Standing Counsel for KSRTC

Case Synopsis & Summary

This writ petition, filed by S. Rajalal, an Administrative Officer (now retired), challenges the KSRTC’s action of withholding Rs. 1,55,994 from his pensionary benefits and the revising of his pay fixation after an audit objection. The petitioner had availed a 1997 pay revision and fixed his scale with an option dated 29/10/1999. An audit objection (Ext.P2) allegedly resulted in a lower pay and reduced qualifying service to 14 years. Despite multiple representations (including Ext.P9), the relief has not been granted; the amount remains withheld. The petitioner contends that the withholding runs contrary to the Supreme Court’s declarations in State of Punjab & others v. Rafiq Masih (White Washer) & others (2015) 4 SCC 334, and that Ext.P9 should be decided on merits so that recovery, if any, can be assessed in light of that decision. The KSRTC’s counsel counters that Rafiq Masih applies only to retirees and not to actions taken while in service; thus its rigorous application should not bar this case. The learned Judge observes that Ext.P9 is pending and decides to direct the competent authority to hear Ext.P9 and dispose it within two months, after which recoveries, if any, will be assessed under the principles laid down in Rafiq Masih. If no recovery is warranted, the amount must be paid within a month."

Legal Doctrines & Maxims

Rafiq Masih (White Washer) doctrine (para 12(3))
Five-year recovery rule from pension (as discussed in Rafiq Masih)
Affirmative declarations in State of Punjab & others v. Rafiq Masih (2015) 4 SCC 334)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that withholding Rs.1,55,994 from pensionary benefits is contrary to the Supreme Court declarations in Rafiq Masih and that Ext.P9 must be decided on merits. He seeks a direct direction to the competent KSRTC authority to consider Ext.P9 and to halt any recovery pending such consideration. If Ext.P9 is decided in his favour, no recovery should follow; if not, recovery must be guided by Rafiq Masih’s tenets and the Court’s directions, including timely payments where recovery is not warranted.

Contentions of Respondents

The KSRTC argues that Rafiq Masih applies primarily to retirees; since pay fixation and recovery occurred while the petitioner was in service, the strict tenets of Rafiq Masih should not automatically apply. The counsel for KSRTC is prepared to have Ext.P9 considered by the competent authority, but requests that no affirmative declarations on relief be made at this stage and left to be decided in accordance with law. The availability of Ext.P9 for consideration and the pending status of the representation are highlighted.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
State of Punjab & others v. Rafiq Masih (White Washer) & others	(2015) 4 SCC 334	Positive	The judgment relies on the declarations in Rafiq Masih to hold that withholding or recovery from pensionary benefits must conform to the principles laid down by the Supreme Court; these declarations guide the court’s approach to recovery in pension cases.
Rafiq Masih (White Washer) & others	(2015) 4 SCC 334	Mentioned Only	The judgement cites Rafiq Masih (supra) to discuss the scope of the five-year recovery rule and its applicability; however, the court notes that the strict application would be contingent on the retirement status and the stage of action, rendering the reference more as a consideration than a direct application in this case.

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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 DEVAN RAMACHANDRAN** **THURSDAY, THE 16[TH] DAY OF JUNE 2022 / 26TH JYAISHTA, 1944** ## **WP(C) NO. 15863 OF 2019** ## **PETITIONER:** S.RAJALAL AGED 54 YEARS S/O. N.SREEDHARAN, LAL BHAVAN, CHAPPATH, CHOWARA P.O., VIZHINJAM, THIRUVANANTHAPURAM, PRESENTLY WORKING AS ADMINISTRATIVE OFFICER, OFFICE OF THE CMD, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANGTHPAURAM BY ADV BIJU BALAKRISHNAN ## **RESPONDENTS:** 1 KERALA STATE ROAD TRANSPORT CORPORATION HEAD OFFICE TRANSPORT BHAVAN, THIRUVANANTHAPURAM-6905 023, REPRESENTED BY ITS MANAGING DIRECTOR 2 THE EXECUTIVE DIRECTOR (ADMINSITRATION) KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANNATHAPURAM-695 023 ## **OTHER PRESENT:** SRI DEEPU THANKAN-SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 15863 OF 2019** **2** ## **JUDGMENT** The petitioner says that he retired from the services of the Kerala State Road Transport Corporation (KSRTC), on attaining the age of superannuation on 30/04/2021, while working as an Administrative Officer. He says that he was validly given the benefits of a Pay Revision in the year 1997 and that his scale of pay was fixed taking his date of option to be 29/10/1999. 2. The petitioner alleges that, however, after more than 18 years, an audit objection was raised, namely Ext.P2 consequent to which, his pay was revised to a lower figure and his qualifying service reduced to 14 years. He says that though he made several representations to the competent Authoirties not to disturb his Pay Scale, as given to him in the year 1997 and to effect his re-option as being 31/03/1999, they have been rejected and thus that he had now finally preferred Ext.P9 for this purpose. He asserts that even though Ext.P9 has not been considered on its merits, an amount of Rs.1,55,994/- has **WP(C) NO. 15863 OF 2019** **3** withheld from his pensionary benefits. 3. Sri.Biju Balakrishnan – learned counsel for the petitioner, argues that, the withholding of the amount of Rs.1,55,994/- from his client’s pensionary benefits is contrary to the affirmative declarations of the Honourable Supreme Court in _**State of Punjab & others v. Rafiq Masih (White Washer) & others[(2015)4 SCC 334]**_ and further that the same could not have been done unless Ext.P9 had been decided on its merits. He thus prayed that this Court direct the competent Authority of the KSRTC to take up Ext.P9 and dispose it of in terms of law; further praying that the recovery of Rs.1,55,994/- be interdicted and it be directed to be paid to his client. 4. The afore submissions of the petitioner were controverted by Smt.Rajanandhini – learned counsel representing the learned Standing Counsel for the KSRTC, saying that the petitioner cannot rely upon the declarations in **WP(C) NO. 15863 OF 2019** **4** _**Rafiq Masih** (supra),_ because the re-fixation of his salary, as also the recovery, were effected when he was in service. She argued that _**Rafiq Masih** (supra)_ would apply only to the case of a person who had retired prior to it, but that since all such action was completed in the case of the petitioner, even before he had superannuated from service, its rigor would not come to play. She, however, added that, if this Court is still inclined to direct Ext.P9 be considered by the competent Authority, she would not stand in the way of such orders being issued; however, praying that no affirmative declarations on the entitlement of the petitioner to any relief be made and it be left open to be decided by the competent Authority, in terms of law. 5. When I consider the afore submissions, it is evident that the petitioner relies upon Clause 3 of Paragraph 12 of _**Rafiq Masih** (supra),_ which inhibits recovery from employees relating to payments made five years prior to such action and argues that, since the fixation of pay was made in the year as **WP(C) NO. 15863 OF 2019** **5** early as in the year 1997, no such can be permitted. 6. However, I do not think that this Court will now be justified in answering this conclusively at this stage because Ext.P9 representation of the petitioner is admittedly pending. If this representation is decided in his favour, then there would be no case for recovery; but in the alternative, if it is found otherwise, certainly the competent authority must consider if recovery was possible, within the rigor of the afore directions of the Honourable Supreme Court. Resultantly, I order this writ petition and direct the competent Authority of the 1st respondent to take up Ext.P9 representation of the petitioner and dispose it of, after hearing him, within a period of two months from the date of receipt of a copy of this judgment. Needless to say, if, after the afore exercise, any amounts are found recoverable from the petitioner, then the question as to whether it can be done in terms of the affirmative **WP(C) NO. 15863 OF 2019** **6** declarations of the Honourable Supreme Court in paragraph 12(3) of _**Rafiq Masih** (supra)._ The resultant order shall be communicated to the petitioner without any delay so that he can then take necessary action against it, if it becomes so warranted. It goes without saying that if the amounts now withheld from the petitioner are found to be not recoverable through the afore exercise, action for paying the same to him shall be completed without any delay, but not later than one month thereafter. ## **Sd/-** **DEVAN RAMACHANDRAN JUDGE** ANB **7** ## **WP(C) NO. 15863 OF 2019** ## **APPENDIX OF WP(C) 15863/2019** PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY OF STATEMENT OF FIXATION OF PAY| |---|---| ||IN THE REVISED SCALE OF THE PETITIONER| |EXHIBIT P2|TRUE COPY OF PAGE NOS.40 AND 41 OF THE| ||SERVICE BOOK OF THE PETITIONER| |EXHIBIT P3|TRUE COPY OF THE JUDGMENT DT.12-4.2018 IN| ||W.P(C) NO.13163/20187| |EXHIBIT P4|TRUE COPY OF ORDER NO.PL7/001359/18| ||DT.01.06.2018 OF THE 1ST RESPONDENT| |EXHIBIT P5|TRUE COPY OF THE RELEVANT PAGES OF THE PAY| ||REVISION AGREEMENT DT.13.04.1999 PUBLISHED| ||BY THE KSRTC| |EXHIBIT P6|TRUE COPY OF THE REPRESENTATION| ||DT.19.07.2018 OF THE PETITIONER WITH HIS| ||OPTION FORM| |EXHIBIT P7|TRUE COPY OF THE JUDGMENT DT.17.08.2018 IN| ||W.P(C) NO.28029 OF 2018 OF THIS HON'BLE| ||COURT| |EXHIBIT P8|TRUE COPY OF THE ORDER| ||NO.P.L.7/001359/18,DT.31.10.2018| |EXHIBIT P9|TRUE COPY OF TE REQUEST OF THE PETITIONER| ||TO RECONSIDER EXT. P8 BEFORE THE 1ST| ||RESPONDENT| |EXHIBIT P10|TRUE COPY OF THE PAY SLIP DT.12.02.2019| |EXHIBIT P11|TRUE COPY OF THE RELEVANT PAGES OF THE| **8** ## **WP(C) NO. 15863 OF 2019** SERVICE BOOK OF THE PETITIONER EXHIBIT P12 TRUE COPY OF THE C.O.MEMO NO.LR163788/92,DT.10.06.1996 EXHIBIT P13 TRUE COPY OF THE RELEVANT PAGES OF SERVICE BOOK.