High Court of KeralaSingle Judge2017-06-09Writ petition disposed of; relief granted in te...

Shaji P.T. v. Joint Registrar (General), Co-operative Societies, Office of the Joint Registrar (General) of Co-operative Societies, Kollam, and Others

Case / Petition Number:WP(C).No. 14384 of 2011 (W)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Shaji P. Chaly
Judgment Date: 2017-06-09
Court Decision / Holding: Writ petition disposed of; Ext.P6 not set aside but the court directs that no recovery of the salary paid to the petitioner should be effected in light of the Masih guidelines; the petitioner is entitled to the salary benefits, and the State should refrain from recovery, given the circumstances and the existing jurisprudence.
Final Disposition: Writ petition disposed of; relief granted in terms of not recovering salary; Ext.P6 remains, but recovery is barred in light of Masih guidelines.

Parties to the Case

Appellants / Petitioners

Shaji P.T.

Respondents

Joint Registrar (General), Co-operative Societies, Office of the Joint Registrar (General) of Co-operative Societies, Kollam
Assistant Registrar (General) of Co-operative Societies, Kollam
Joint Director of Co-operative Audit, Kollam
Kottarakkara District State Transport Employees Co-operative Society Ltd, represented by its Secretary

Legal Representation & Advocates

Counsels for Petitioners

• Sri M.V. Thamban
• Sri B. Bipin
• Sri R. Reji
• Smt. Revathy P. Nair
• Smt. Thara Thamban

Counsels for Respondents

• Smt. Mable C. Kurian

Case Synopsis & Summary

This writ petition, WP(C).No. 14384 of 2011 (W), was filed by Shaji P.T., employed as a Peon with the 4th respondent, the Kottarakkara District State Transport Employees Co-operative Society Ltd. The petitioner challenges Ext.P6, a communication directing termination on the ground that only one Peon post was sanctioned, while the petitioner had been filling the post. The 4th respondent’s committee had, by Ext.P7 (No.89/10-11, 24.02.2011), promoted Salini S. to Attender and regularized the petitioner’s appointment as Peon against the promotion vacancy; however, prior to Ext.P6, the 1st respondent had rejected the appointment on the basis of no sanctioned post. The matter highlights the complex staff pattern under the 1969 Rules, with the sanctioned post structure showing one Peon post, one Attender post, and other staff. The 1st respondent’s order seeks removal and recovery of salary based on audit objections (Ext.P9). The court, while noting there was no sanctioned post at the time of initial posting, found Ext.P6 not arbitrary, and invoked the Supreme Court’s guidance in State of Punjab v. Rafiq Masih (White Washer) to protect the petitioner from recovery of overpaid salary, particularly since the petitioner is classified as Class-IV employee. Ultimately, the writ petition was disposed of with directions not to recover the salary and in consideration of the Masih principles, recognizing the petitioner’s entitlement to salary.”

Provisions of Law Cited

Constitution of India, Article 226Co-operative Societies Rules, 1969Feeder Category Sub Rules and Classification

Legal Doctrines & Maxims

Recovery of salary paid as a result of excess or irregular payments to Class-III/IV employees should be approached with caution; recovery may be iniquitous or harsh and may outweigh the employer's right to recover, per the principles in State of Punjab v. Rafiq Masih (White Washer) (SC) and related Kerala decisions.
The Supreme Court’s Mason Masih guidelines (i)-(v) outline when recoveries are to be avoided, especially for lower-grade employees.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the 4th respondent’s committee resolutions (23.05.2009 and 24.02.2011) created or regularized a Peon post and Salini S.’s promotion to Attender created a vacancy that should have been filled by the petitioner; Ext.P6 directing termination on the basis of an unsanctioned post is unsustainable. The petitioner seeks to have Ext.P6 quashed and to recognize the validity of his appointment and salary, invoking the staff pattern and the Fairness principles established in Masih to avoid recovery of salary drawn

Contentions of Respondents

The respondents argue that there was only one sanctioned Peon post; the initial appointment of the petitioner violated the sanctioned post; Ext.P6 was legal and necessary to correct an irregularity; the 4th respondent’s staff pattern shows limited sanctioned posts; actions were taken in accordance with statutory rules and audit objections.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
State of Punjab v. Rafiq Masih (White Washer)	2015 (1) KLT 429 (SC)	Positive	Court relies on the Masih guidelines to allow a salary retention and bar recovery for last-grade employees in similar circumstances.
W.P.(C) No.15787 of 2007	—	Positive	Court cites its own earlier judgment in 15787/2007 to support non-recovery of salary in similar scenarios.

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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 SHAJI P.CHALY** **FRIDAY, THE 9TH DAY OF JUNE 2017/19TH JYAISHTA, 1939** **WP(C).No. 14384 of 2011 (W) ----------------------------** **PETITIONER(S):** **-------------** **SHAJI P.T., PEON, THE KOTTARAKKARA DISTRICT STATE TRANSPORT EMPLOYEES CO-OPERATIVE SOCIETY LTD, NO.Q-158, PULAMON(P.O.),KOTTARAKKARA, KOLLAM DISTRICT, RESIDING AT:-KALLIKKOTTU VEEDU, PALLICKAL(P.O.), KOTTARAKKARA, KOLLAM DISTRICT.** **BY ADVS.SRI.M.V.THAMBAN** **SRI.B.BIPIN SRI.R.REJI SMT.REVATHY P.NAIR SMT.THARA THAMBAN** **RESPONDENT(S):** **--------------** ## **1.THE JOINT REGISTRAR (GENERAL)** **CO-OPERATIVE SOCIETIES, OFFICE OF THE JOINT REGISTRAR(GENERAL) OF CO-OPERATIVE SOCIETIES, KOLLAM,PIN-691001.** - **2.THE ASSISTANT REGISTRAR(GENERAL)OF** **CO-OPERATIVE SOCIETIES, OFFICE OF THE ASSISTANT, REGISTRAR(GENERAL) OF CO-OPERATIVE SOCIETIES, KOLLAM-12.** - **3.THE JOINT DIRECTOR OF CO-OPERATIVE AUDIT, OFFICE OF THE JOINT DIRECTOR OF CO-OPERATIVE AUDIT, KOLLAM,KOLLAM DISTRICT,PIN-691001.** - **4.THE KOTTARAKKARA DISTRICT STATE TRANSPORT EMPLOYEES CO-OPERATIVE SOCIETY LTD, NO.Q-158, REPRESENTED BY ITS SECRETARY, PULAMON(P.O.), KOTTARAKKARA, KOLLAM DISTRICT-691531.** **BY GOVERNMENT PLEADER SMT. MABLE C. KURIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 14384 of 2011 (W) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** |**P1**|**TRUE COPY OF THE LETTER DATED 17.05.2007**| |---|---| |**P2**|**TRUE COPY OF THE APPOINTMENT ORDER DATED 28.05.2007**| |**P3**|**TRUE COPY OF THE CRB.3145/05/K.DIS DATED 31.05.2005**| |**P4**|**TRUE COPY OF THE APPOINTMENT ORDER DATED 25.05.2009**| |**P5**|**TRUE COPY OF THE RESOLUTION NO.40/10-11 DATED**| ||**12.08.2010 OF THE 4TH RESPONDENT CO-OPERATIVE**| ||**SOCIETY**| |**P6**|**TRUE COPY OF THE LETTER C.R.B.8452/2010 DATED**| ||**22.03.2011 OF THE 1ST RESPONDENT**| |**P7**|**TRUE COPY OF THE RESOLUTION NO.89/10-11 DATED**| ||**24.02.2011 OF THE COMMITTEE OF THE 4TH RESPONDENT**| |**P8**|**TRUE COPY OF THE LETTER DATED 30.04.2011**| |**P9**|**TRUE COPY OF THE AUDIT CERTIFICATE NO.M.554/10 RNU**| ||**DATED 10.08.2010**| **RESPONDENT(S)' EXHIBITS -----------------------** ## **NIL** ## **TRUE COPY** **P.S. TO JUDGE** **EL** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.14384 of 2011 ----------------------------------------------Dated this the 9[th] day of June, 2017** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to declare that the appointment of the petitioner as Peon under the 4th respondent as per resolutions dated 23.05.2009 and 24.02.2011 of the Committee of the 4th respondent are bound to be accepted by the 1st respondent, and seeking to quash Ext.P6 order issued by the 1st respondent, and for other related reliefs, including interference with the recovery action to recover an amount of Rs.92,555/- from the assets of the 4th respondent society, and other consequential reliefs. Material facts for the disposal of the writ petition are as follows: 2. Petitioner was working as Peon under the 4th respondent Co-operative Society. The 1st respondent as per Ext.P6 has directed the 4th respondent to terminate the service of the petitioner as Peon on the ground that only one post of Peon has been sanctioned to the 4th respondent Co-operative Society, and the petitioner has been working as Peon against the second post. According to the petitioner, one post each of 2 **W.P.(C) No.14384 of 2011** Attender and Peon were sanctioned to the 4th respondent society. However, keeping the post of Attender as vacant, one Salini S., who was Sl.No.1 in the ranked list prepared for appointment of Peon was appointed as Peon and the petitioner who is ranked Sl.No.2 in the rank list for Peon was initially appointed against the post of Part-time Contingent employee and later as Peon. 3. However, before the issuance of Ext.P6 letter by the 1st respondent, the Committee of the 4th respondent Cooperative Society as per Ext.P7 resolution No.89/10-11 dated 24.02.2011 had decided to grant promotion to the existing staff including the Peon, Salini S. Accordingly, Salini S. was promoted as Attender from the post of Peon, and regularized the appointment of the petitioner as Peon under the 4th respondent against the promotion vacancy of Salini S. 4. On receipt of Ext.P6, the Secretary of the 4th respondent society forwarded Ext.P7, requesting to grant approval of appointment of the petitioner stating that the 4th respondent has been maintaining the staff pattern as per the existing Feeder Category Sub Rules and Classification and no surplus employees are working under the 4th respondent. 3 **W.P.(C) No.14384 of 2011** However, till date, the 1st respondent has taken any action upon Ext.P8 and steps are being taken to recover the salary drawn by the petitioner on the basis of Ext.P9 audit objection. These are the background facts projected by the petitioner to seek the reliefs sought for in the writ petition. 5. Third respondent has filed a counter affidavit disputing the claims and demands raised by the petitioner and supporting Ext.P6 order passed by the 1st respondent. That apart, it is stated that, the approved staff pattern of the 4th respondent Society is as follows: |“|1.|Secretary|-|01| |---|---|---|---|---| ||2.|Accountant/Sr. Clerk -||01| ||3.|Junior Clerk|-|03| ||4.|Attender|-|01| ||5.|Peon|-|01”| 6. Therefore, according to the 3rd respondent, the action of the 4th respondent appointing the petitioner as a Peon is against a non-sanctioned post, and therefore, is illegal. However, it is submitted that the 4th respondent as per the resolution dated 23.08.2010 had submitted an application to the 1st respondent for approval of the appointment of the petitioner as Peon with effect from 24.05.2009. But the 1st 4 **W.P.(C) No.14384 of 2011** respondent rejected the application on the ground that only one post of Peon was sanctioned to the 4th respondent Cooperative Society, and also directed the 4th respondent to terminate the petitioner from the service of the society and report the matter to the 1st respondent, as per the letter dated 22.03.2011. However, the 4th respondent society as per the resolution dated 24.02.2011 decided to grant promotion to the existing staff including the Peon Salini S., who was promoted as Attender from the post of Peon. Consequent on the promotion of Salini S., the petitioner's post of Peon was regularized by the 4th respondent. 7. Further, it is submitted that the 1st respondent has issued the order dated 22.03.2011 to terminate the service of the petitioner as Peon since there was no sanctioned post at the time of the first posting of the petitioner. Without sanctioning a post of Peon, petitioner has been appointed as Peon of the society, which is irregular. Matters being so, audit note prepared on the basis of statute and the illegal and irregular appointment and consequent expenditure are objected to. So, an amount of Rs.92,555/- has been objected and put as reserve. Therefore, according to the 3rd **W.P.(C) No.14384 of 2011** 5 respondent, the actions of the 3rd respondent are legal and sustainable. 8. Heard learned counsel for the petitioner and the learned Government Pleader and perused the documents on record and the pleadings put forth by the respective parties. 9. The subject matter of consideration revolves around Ext.P6 order. As discussed above, there was only one post of Peon in the 4th respondent society, in accordance with the staff pattern provided under the Rules, 1969. The 2nd rank holder was appointed as a Part-time employee, whereas the first rank holder was appointed as a Peon prior to the same. Even though the petitioner was appointed as Part-time Contingent employee, he was later appointed as Peon. Even admittedly, there was no sanctioned post, and therefore, it cannot be said that Ext.P6 order passed by the 1st respondent is suffering from any sort of illegality or arbitrariness, warranting interference of this Court, exercising the power of judicial review under Article 226 of the Constitution of India. 10. However, I am reminded of the judgment of the apex court under similar circumstances in ' _**'State of Punjab v. Rafiq Masih (White Washer)'**_ [2015 (1) KLT 429 (SC)], 6 **W.P.(C) No.14384 of 2011** wherein the apex court had considered the question of recovery of payments mistakenly made, and culled out certain principles, which are as follows: _“(i) Recovery from employees belonging to Class-III and Class-IV 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 employee, 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. Therefore, it can be seen that the petitioner was a Class-IV employee and petitioner is entitled to get the benefits of the principles of law laid down in the afore-quoted judgment. I have considered this question in the judgment in W.P.(C) No.15787 of 2007 dated 05.06.2017, and held that the recovery of amounts paid as salary towards such last grade employees cannot be justified. That apart, there is no case for 7 ## **W.P.(C) No.14384 of 2011** the respondents that the petitioner did not work as a Peon. Since the petitioner has worked, he is entitled for salary. 12. Therefore, even though I am holding that Ext.P6 order is not suffering from any vice of arbitrariness, there will be a direction to the respondents not to recover the salary due to the petitioner, since the petitioner is entitled to get the benefits of the judgment of the apex court referred to _supra_ . The writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** St/12.06.2017