Sri. Peethambaran K. v. State of Kerala and Ors.

``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 29 [ TH ] DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA, 1944 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`WP(C) NO. 13900 OF 2017`** ``` PETITIONER/S: ``` ``` SRI.PEETHAMBARAN K. AGED 67 YEARS S/O.LATE KUMARAN, RETIRED CONTINGENT EMPLOYEE, ALUVA MUNICIPALITY, RESIDING AT VALLOORAKATHOOTTU VEEDU, 11/53, PRIYA LANE, OOMANAKUZHITHADAM, ALUVA, ERNAKULAM DISTRICT 683 101 BY ADVS. SMT.SHAMEENA SALAHUDHEEN SMT.S.SIMY RESPONDENT/S: 1 STATE OF KERALA REP BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2 THE DIRECTOR OF URBAN AFFAIRS SWARAJ BHAVAN, NATHANCODE, KOWDIAR PO, THIRUVANANTHAPURAM 695 003. 3 THE SECRETARY ALUVA MUNICIPALITY, MUNICIPAL OFFICE, ALUVA 683 101. BY ADVS. SRI.V.M.KURIAN, SC, ALUVA MUNICIPALITY MATHEW BOB KURIAN K.T.THOMAS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 13900 OF 2017 ``` ``` 2 ``` ## **JUDGMENT** This writ petition is filed invoking Article 226 of the Constitution of India, seeking to quash Exhibit P5 Recovery Notice dated 16.06.2015, calling upon the petitioner herein to refund a sum of Rs. 1,74,009/-. The petitioner has also sought to quash Exhibit P15 revised notice dated 01.02.2017, by which the amount sought to be recovered from the petitioner herein has been reduced to Rs. 70,652/- and for issuance of directions to the 3rd respondent to revise, refix and sanction the pay and pension of the petitioner and to disburse all consequential benefits. 2. To understand the contention of the petitioner, the brief facts are required to be stated in some detail. While working as a Drainage Cleaner in the Aluva Municipality, the petitioner attained superannuation on 31.03.2010. He contends that he had joined the service of the 3rd respondent as a Drainage Cleaner on 10.08.1988, and it was after serving about 21 years, 7 months, and 22 days that he retired. The petitioner asserts that though Exhibit P1 order was issued by the 3rd respondent sanctioning the benefits due to him, no amount was paid towards terminal benefits. According to the petitioner, on 25.08.2011, Exhibit P2 order ``` WP(C) NO. 13900 OF 2017 ``` ``` 3 ``` was issued by the Government revising the pay and service conditions of the contingent employees of Panchayat and Municipalities. In tune with Exhibit P2, the pay due to the petitioner was fixed in the revised scale as Rs. 14,620/-, which has to come into effect from 01.07.2009, as is evident from Exhibit P3. The petitioner states that, later, by order dated 24.04.2013, produced as Exhibit P4, the pension revision was ordered. However, the amount due to the petitioner was not disbursed. While so, Exhibit P5 notice was issued, wherein it is stated that the petitioner is required to refund the excess payment received by him to the tune of Rs. 1,74,009/-. The petitioner responded to the said notice and contended that the demand raised is without any basis. The petitioner states that thereafter, on the basis of the request made by the petitioner, who was called for a hearing and thereafter, the respondent has come up with Exhibit P15 order dated 01.02.2017, calling upon the petitioner herein to remit the a sum of Rs.70,652/and directions were issued to repay the amount within 30 days. It is in the afore circumstances that this writ petition is filed seeking directions. 3. A counter affidavit has been filed by the 3rd respondent. Wherein after narrating the sequence of events, it is stated that as per the ``` WP(C) NO. 13900 OF 2017 ``` ``` 4 ``` Pay Revision Order dated 25.08.2011 issued by the Government, the salary of the petitioner, who was having 20 completed years of service as of 01.07.2009, was refixed at Rs. 14,620/- and the same was approved by the Local Fund Audit Department. According to the respondents, on account of the fact that the 2011 Pay revision Order has not come into effect, the monthly pension of the petitioner was refixed at Rs.4,095/-. Later, the pensionary benefits of the contingent employees were revised as per the order dated 24.04.2013. In pursuance to the same, by report dated 21.05.2015, pensionary benefits due to the petitioner were refixed by fixing the monthly pension at Rs.5,294/-, DCRG at Rs.1,73,690/- and the Commuted Value of Pension as Rs.2,07,678/-. It is stated that while calculating the Commuted Value of Pension, there arose some error, and the same was revised and refixed at Rs.2,49,214/-. In terms of the same, though the petitioner was entitled to get DCRG of Rs.1,73,692/- and Commuted Value of Pension of 2,49,214/-, by oversight, the petitioner was granted amounts in excess. On finding the above mistake, Exhibit P5 notice was issued to the petitioner directing him to refund a sum of Rs.1,74,009/-. While issuing Exhibit P5 an inadvertent error occurred, and instead of Rs. 70,652/-, it is mentioned that a sum of Rs.1,74,009/- was due, and the said amount was ordered to be refunded. It was in the said circumstances that ``` WP(C) NO. 13900 OF 2017 ``` ``` 5 ``` Exhibit P15 notice was issued on 01.02.2017, directing the petitioner to refund a sum of Rs.70,652/- to the Municipality. It is further stated that the petitioner is entitled to receive a sum of Rs. 22,770/- towards salary arrears for the period from 01.07.2009 to 31.03.2010, the said amount was adjusted from the amount due from the petitioner, and in the said circumstances, the amount due from the petitioner from the Municipality is Rs. 47,882/-. It is stated that the petitioner has obtained undue benefits due to a mistaken calculation, and he is not entitled to retain the excess amount. 4. Smt. Shameena Salahudheen, the learned counsel appearing for the petitioner, submitted that the petitioner was a class-IV Employee who, while working as a Drainage Cleaner, had attained superannuation on 31.3.2010. According to the learned counsel, owing to the anomaly in the fixation of his pension, the respondents have deprived of the petitioner of his full retirement benefits. To make matters even worse, he has been served with a recovery notice and has been ordered to refund a sum of Rs. 47,882/- which allegedly was paid to the petitioner in excess. According to the learned counsel, the petitioner is eligible to get his pay fixed at Rs.14,980/- in terms of Ext.P2 G.O. The learned counsel would also assert that the fixation has been done without taking into account the weightage for the service period of 22 years of the petitioner. The learned counsel ``` WP(C) NO. 13900 OF 2017 ``` ``` 6 ``` urged that the petitioner fell into the category of a Last-grade Servant, and when the respondents have no case that the higher grade was granted and amounts were disbursed due to any misrepresentation on the part of the petitioner, no steps could have been taken to recover the excess amount alleged to have been disbursed. Relying on the principles laid down in **State of Punjab v. Rafiq Masih** (White Washer) [(2014) 8 SCC 883], as clarified in **High Court of Punjab and Haryana and Ors. v. Jagdev Singh** [(2016) 14 SCC 267], and **M.P.Medical Officers Association v. State of M.P. and Ors.** [judgment dated 26.8.2022 in Civil Appeal No. 5527/2022], it is contended that it would be iniquitous to permit recovery of excess payment made to an employee like the petitioner herein, particularly when the amounts were disbursed strictly in tune with the Government Orders. 4. Sri. K.T. Thomas, the learned counsel appearing for the Municipality, reiterated the contentions in the counter. It is submitted that due to oversight and mistake in calculation, an amount of Rs. 47,657/- was paid in excess. In addition, DCRG amounting to Rs. 22,995/- was also paid in excess. 5. I have considered the submissions advanced and gone through the records. ``` WP(C) NO. 13900 OF 2017 ``` ``` 7 ``` 6. It is undisputed that the petitioner had worked as a contingent employee in the Aluva Municipality as a Drainage Cleaner and, on his retirement on 31.3.2010, had completed 21 years 7 months, and 22 days in service. The records reveal that the salary of the petitioner was refixed at Rs.14,620/- as on 1.7.2009, and the same was approved by the Local Fund Audit Department. It is the case of the respondents that Ext.P15 notice was issued to the petitioner calling upon him to refund the sum of Rs. 70,652/to the Municipality, which was paid in excess. Later, it was revealed that a sum of Rs.22,770/- was due to the petitioner towards salary arrears. After deducting the said amount, the respondents assert that a sum of Rs. 47,882/- is due and that the petitioner is liable to refund the same. 7. In **Rafiq Masih** (Supra), the Apex Court had occasion to postulate the situations of hardship that would govern employees on the issue of recovery, where payments have mistakenly been made by the employer in excess of his entitlement. After balancing the conflicting claims and the hardship likely to be caused, the Hon’ble Supreme Court had summarised the situations wherein recovery of the amounts by the employers would be impermissible under law. It was held as follows in paragraph No. 18 of the judgment. 18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have ``` WP(C) NO. 13900 OF 2017 ``` ``` 8 ``` 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 the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the 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. 8. There is no dispute that the petitioner falls in the lower rung of the service, and the recovery is being effected for the excess payment made. This is not a case wherein the petitioner knew that the payment received was in excess of what was due. There is no case that there was any misrepresentation or fraud on the part of the petitioner. As held by the Apex Court, when payments have been made for a long duration of time, the logic of recovery of the excess amount paid would be iniquitous, ``` WP(C) NO. 13900 OF 2017 ``` ``` 9 ``` arbitrary, and violative of Article 14 of the Constitution of India. There cannot be any doubt that it would be next to impossible for a person such as the petitioner to bear the financial burden of a refund of payment received wrongfully for a long period as he would have spent the emoluments that he would have received for the upkeep of his family under the bonafide belief that he is entitled to the said amount. In the case on hand, the petitioner had attained superannuation in the year 2010, and till date, the retirement benefits have not been disbursed. I am of the considered opinion that calling upon the petitioner to refund any amount would be inequititious. In view of the discussion above, the petitioner is entitled to succeed. I hold that the recovery proceedings initiated against the petitioner cannot be sustained. Consequently, Ext.P5 and P15 will stand quashed. There will be a direction to the 3rd respondent to revise, refix and sanction the pay and pension of the petitioner pursuant to Exts.P2 and P4 and disburse all consequential benefits attached thereto. ## **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` WP(C) NO. 13900 OF 2017 ``` ``` 10 ``` ## **`APPENDIX OF WP(C) 13900/2017`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1 TRUE COPY OF THE ORDER NO.G2/14476/09 DATED 16.9.2010 ISSUED BY THE 3RD RESPONDENT ``` ``` EXHIBIT P2 TRUE COPY OF THE GO(MS) NO. 200/2011 LSGD DATED 25.8.2011 ``` - `EXHIBIT P3 TRUE COPY OF THE FIXATION STATEMENT DATED 31.7.2012` - `EXHIBIT P4 TRUE COPY OF THE GO(MS) NO.16-0/2013 DATED 24.4.2013` - `EXHIBIT P5 TRUE COPY OF THE RECOVERY NOTICE NO.G4/11476/09 DATED 16.6.2015` - `EXHIBIT P6 TRUE COPY OF THE REPLY NOTICE DATED 14.10.2015` - `EXHIBIT P7 TRUE COPY OF THE APPLICATION UNDER THE RTI ACT DATED 14.10.2015` ``` EXHIBIT P8 TRUE COPY OF THE REPLY NO. G4/8107/13 DATED 7.11.2015 ``` - `EXHIBIT P9 TRUE COPY OF THE STATEMENT SUBMITTED BY THE COUNSEL ON 31.12.2015` - `EXHIBIT P10 TRUE COPY OF THE REMINDER DATED 8.2.2016 EXHIBIT P11 TRUE COPY OF THE NOTICE NO. G4/11476/09 DATED 7.4.2016` ``` EXHIBIT P12 TRUE COPY OF THE REPLY NOTICE ALONG WITH THE RECEIPT OF SUBMISSION DATED 13.4.2016 ``` ``` EXHIBIT P13 TRUE COPY OF THE APPLICATION UNDER THE RTI ACT DATED 13.4.2016 ``` ``` EXHIBIT P14 TRUE COPY OF THE REPLY RECEIVED DATED 9.5.2016 EXHIBIT P15 TRUE COPY OF THE RECOVERY NOTICE DATED 1.2.2017 ```