Sainaba Beevi v. Kerala Forest Development Corporation Limited and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY, THE 3RD DAY OF APRIL 2017/13TH CHAITHRA, 1939 WP(C).No. 17879 of 2011 (H) ---------------------------- PETITIONER: -------------- SAINABA BEEVI, STENO-TYPIST (SENIOR GRADE), KERALA FOREST DEVELOPMENT CORPORATION LIMITED,, THIRUVANANTHAPURAM. ## BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT(S): --------------------- 1. KERALA FOREST DEVELOPMENT CORPORATION LIMITED, AARANYAKAM,KARAPUZHA,KOTTAYAM, REPRESENTED BY ITS MANAGING DIRECTOR 686 003. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT,FOREST AND WILD LIFE DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM 695 001. 3. THE COMPTROLLER AND ACCOUNTANT GENERAL, OFFICE OF THE COMPTROLLER AND ACCOUNTANT GENERAL,, THIRUVANANTHAPURAM 695 001. R1 BY SRI.V.G.ARUN ## R2&3 BY SMT. A.C. VIDHYA, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17879 of 2011 (H) : 2 : ## **APPENDIX** ## PETITIONER'S EXHIBITS: |EXT.P1|:|TRUE COPY OF THE ORDER DATED 21.01.1981 ISSUED BY| |---|---|---| |||THE 1ST RESPONDENT.| |EXT.P2|:|TRUE COPY OF ORDER DATED 20.07.1987 ISSUED BY THE| |||1ST RESPONDENT.| |EXT.P3|:|TRUE COPY OF ORDER DATED 03.04.1996 ISSUED BY THE| |||1ST RESPONDENT.| |EXT.P4|:|TRUE COPY OF THE ORDER DATED 14.06.2005 ISSUED BY| |||THE 1ST RESPONDENT.| |EXT.P5|:|TRUE COPY OF THE GOVERNMENT ORDER DATED 13.02.1997| |||ISSUED BY THE 2ND RESPONDENT.| |EXT.P6|:|TRUE COPY OF THE RELEVANT PAGES OF LETTER DATED| |||04.01.2011 BY THE 1ST RESPONDENT.| |EXT.P7|:|TRUE COPY OF LETTER DATED 24.06.2011 FROM THE| |||PETITIONER TO THE 1ST RESPONDENT.| |EXT.P8|:|TRUE COPY OF THE RELEVANT PAGES OF LETTER DATED| |||04.01.2011 ISSUED BY THE 1ST RESPONDENT.| ## RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rv **'CR'** **DAMA SESHADRI NAIDU, J. ------------------------------------------W.P. (C) No. 17879 of 2011 (H) -----------------------------------------Dated this the day of April 2017.** ## **JUDGMENT** The petitioner, a Stenographer, joined the first respondent Corporation on 29.01.1981 as a Steno-typist, Grade II. Later, on 01.07.1986, she was promoted as Steno-typist, Grade I. To that extent, there is no controversy. 2. On 27.12.1995, the petitioner was promoted further as Steno-Typist, Senior Grade. Because of that promotion, as seen from Ext.P4, the petitioner was given 24-year time-bound highergrade pay. It was with effect from 29.01.2004. Eventually, she retired from service on 20.11.2015. 3. While the petitioner was still in service, the Corporation issued Ext.P6 proceedings proposing to recover `95,236/- because of what is said to be an excess pay paid to the petitioner in the cadre of Steno-Typist, Senior Grade, a non-existing cadre. Aggrieved, the petitioner submitted Ext.P7 explanation. She has contended that at W.P.(C.) No. 17879/2011 -2- the inception, there were only two sanctioned posts, but by the time she was promoted, the Corporation had nine sanctioned posts. She has also further brought to the authorities’ notice that the Accountant General, in his Audit Report, was guided by the sanctioned strength in the Corporation at its inception, but not later. The Corporation, she pleaded, had more posts added to its strength. As seen from the record, the authorities persisted with their effort to recover the alleged excess pay, the petitioner’s explanation notwithstanding. Under those compelling circumstances, the petitioner approached this Court. 4. In the above factual background, Sri P. Ramakrishnan, the learned counsel for the petitioner, has taken me through the entire record. To begin with, he has contended that Ext.P5 amply demonstrates that on 13.02.1997, there was a revision of pay for various posts, including Steno-typist, Senior Grade. He has also further drawn my attention to Ext.P7, to which an annnexure found attached. The annexure reveals that on 24.01.1995 the Corporation resolved to increase the cadre strength; clearly found mentioned is the post of Steno-Typist, Senior Grade. Ext.P3 order of promotion, W.P.(C.) No. 17879/2011 -3- according to the learned counsel, only reflects the increased cadre strength, as seen from Ext.P7, and also the revised pay, as seen from Ext.P5. 5. In the alternative, Sri Ramakrishnan has contended that the law is well settled that once an employee has neither played fraud nor misrepresented, the service benefit given by the employer—even by oversight—and enjoyed by the employee bona fide cannot be withdrawn. More pertinently, the employee cannot be compelled to repay it, especially, belatedly. Here, according to the learned counsel, the employee had already retired. And any direction now would inflict untold misery on her. To support his contentions, he relied on the judgment dated 10.03.2017 passed by this Court in W.P.(C) No. 17249 of 2011. 6. Per contra, the learned Government Pleader has submitted that, as has been rightly found by the Accountant General, the petitioner was promoted to the post of Steno-Typist, Senior Grade, way back on 27.12.1995, when the very post did not exist. Taking me through the counter affidavit filed by the Accountant General, the W.P.(C.) No. 17879/2011 -4- learned Government Pleader has submitted that the Corporation had many times sought the Government's sanction for additional posts. But the Government consciously refused to accord any sanction. According to her, absent any sanction from the Government, the Corporation creating certain posts and promoting the employees could not be sustained. Summing up her submissions, the learned Government Pleader has submitted that the promotion granted to the petitioner is illegal and the pay benefits extended to her on that illegal promotion cannot be sustained—ought to be recovered. 7. In response to the alternative submission made by the learned counsel for the petitioner, the learned Government Pleader has submitted that in certain cases bearing factual resemblance to this case, the Supreme Court had interfered as a matter of equity, especially under Article 142 of the Constitution of India. But the Court has never laid an invariable—much less, an inflexible—principle that all times and under all circumstances, no recovery should be made. 8. The learned Standing Counsel for the 1[st] respondent has submitted that the Corporation has acted bona fide and promoted the W.P.(C.) No. 17879/2011 -5- petitioner as she had been entitled. The enhanced pay accords with the cadre she held until her retirement. The salary thus paid on the petitioner’s promotion cannot be recovered, at this length of time. At any rate, the Corporation was constrained to issue Ext.P6, submits the Standing Counsel, because it is bound by the Government directives. He has, nevertheless, submitted that despite repeated requests by the Corporation to accord sanction to the increased cadre strength and also revised pay, the Government did not act. ## **A Similar Case and its Outcome:** 9. Earlier, under similar circumstances, in T. J. Radhakrishnan v. State of Kerala[1] involving the Corporation’s another employee, this Court rendered a judgment dated 10.03.2017 in W.P.(C) No. 17249 of 2011. Under similar circumstances—with minor factual variance, though—a learned single Judge has observed that the employee “had been granted the benefits validly and under proper acknowledgment by the Company,” so he cannot now be prejudiced by an order to his detriment. Drawing precedential support from State of Punjab v Rafiq > 1 Judgment dated 10.03.2017, in W.P.(C) No. 17249 of 2011 W.P.(C.) No. 17879/2011 -6- Masih[2] of the Supreme Court, the learned Single Judge has held that when benefits have already been paid to an employee, for no fault of his and with no vitiating circumstances attributable to him, the employer cannot withdraw benefited to that employee merely because later the extended benefit was found irregular. 10. In the end, though the learned Single Judge quashed the recovery proceedings, his Lordship has, however, observed that, concerning the post the employee had been promoted to, the Government should determine on the employee’s representation whether it could be approved. Only on the Government’s determination should the employee’s entitlement to the terminal benefits depend. 11. Guided and bound by T. J. Radhakrishnan, I hold that the Corporation cannot recover the putative excess-pay paid to the petitioner. As to the terminal benefits to be fixed and paid to the petitioner, I reiterate the direction in T. J. Radhakrishnan. On the employee’s entitlement to grade promotion, it holds as follows: “9. However, the issue as to whether the petitioner was entitled to the grade promotion in spite of the Company not having obtained the concurrence of the Government is not an issue that I propose to consider conclusively here. I deem it appropriate that if the petitioner is > 2 (2015) 4 SCC 334 W.P.(C.) No. 17879/2011 -7- so desirous, he can move a proper representation before the competent secretary of the Government making his claim for such grade promotion, so that the amounts withheld from him while making payment to him can be now claimed by him. I deem it necessary because it is essentially a question of facts as to whether the higher grade post of Divisional Manager Gr.I in the Service Rules is applicable to the second respondent Company and as to whether the Company was authorised to grant higher grade without the concurrence of the Government. This Court, acting under Article 226 of the Constitution of India, will not be justified in delving into such issues which are essentially in the realm of facts or, at best, mixed questions of law and facts. I deem it appropriate that these are left to the appropriate authorities. ## **Conclusion:** (1) As the finding already arrived at rules against the Corporation’s recovering the putative excess-pay, I quash Ext.P6. (2) The petitioner is free to represent to the Government Authority concerned about her entitlement to the grade promotion and the imperative to sanction the post, retrospectively. 12. If the Authority receives the employee’s representation, he will consider it and pass the necessary orders. The authority’s will decide on the issue before him uninfluenced by what is stated in this judgment. Because the petitioner has already retired, the authority shall complete the exercise expeditiously, at any rate, within three months from the date he receives the petitioner’s representation. W.P.(C.) No. 17879/2011 -8- 13. I may observe that the petitioner’s eligibility to have the terminal benefits quantified depends on the Authority’s decision to be arrived at. This writ petition is thus ordered. No order on costs. sd/- **DAMA SESHADRI NAIDU, JUDGE.** Rv