State of Kerala and others v Nalini C.E and others

OP(KAT).No.38 OF 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943** ## **OP(KAT).No.38 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OA 674/2019 DATED 29-10-2019 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS IN O.A:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE ASSISTANT DEVELOPMENT COMMISSIONER (GENERAL), COLLECTORATE, PALAKKAD, PIN-678001.** - **3 THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM-695001.** - **4 THE BLOCK DEVELOPMENT OFFICER, PERINTHALMANNA, P.O.PERINTHALMANNA, MALAPPURAM DISTRICT-679322.** - **5 THE BLOCK DEVELOPMENT OFFICER, KALLIKAVU, P.O.KALLIKAVU, MALAPPURAM DISTRICT-676525.** OP(KAT).No.38 OF 2021 2 **6 THE BLOCK DEVELOPMENT OFFICER, KONDOTTY, P.O.KONDOTTY, MALAPPURAM DISTRICT-673638.** **BY SRI.ANTONY MUKKATH- SR. GOVERNMENT PLEADER** ## **RESPONDENT/S:** **1 NALINI. C.E AGED 55 YEARS D/O.VELU NAIR, JOINT BLOCK DEVELOPMENT OFFICER, (RURAL HOUSING), BLOCK DEVELOPMENT OFFICE, PERINTHALMANNA, P.O.PERINTHALMANNA, MALAPPURAM DISTRICT-679322, RESIDING AT SAKETHAM, P.O.PUZHAKKATTIRI, MALAPPURAM-679321.** **2 SARALA.A., AGED 52 YEARS D/O.KUNCHU NAIR.M, JOINT BLOCK DEVELOPMENT OFFICER, (EMPLOYMENT GUARANTEE SCHEME), BLOCK DEVELOPMENT OFFICE, KALLIKAVU, P.O.KALLIKAVU, MALAPPURAM DISTRICT-676525, RESIDING AT PULPAYIL, P.O.NILAMBUR, MALAPPURAM DISTRICT-679329.** **3 SURENDRAN.N, AGED 53 YEARS S/O.SREEDHARAN NAIR, JOINT BLOCK DEVELOPMENT OFFICER (RURAL HOUSING), BLOCK DEVELOPMENT OFFICE, KONDOTTY, P.O.KONDOTTY, MALAPPURAM DISTRICT-673638, RESIDING AT SREELAKAM, P.O.MANJERI, MALAPPURAM DISTRICT-676121.** **R1-3 BY ADV. SRI.P.M.PAREETH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 26.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT).No.38 OF 2021 3 ## **ALEXANDER THOMAS & K.BABU, JJ.** ## **============================ O.P(KAT) NO.38 of 2021** _(arising out of order dated 29.10.2019 in O.A.(EKM) No.674/2019 of KAT, Thiruvananthapuram)_ **============================** Dated this the 26[th] day of March, 2021 ## **JUDGMENT** ## **Alexander Thomas, J** The prayers in the instant Original Petition filed under Articles 226 and 227 of the Constitution of India are as follows: (See page No.9 of the paper book of this Original Petition) “..........pleased to stay the operation and implementation of Ext.P3 order dated 29.10.2019 in O.A(EKM) No.674/2019 on the file of the Kerala Administrative Tribunal, Additinal Bench, Ernakulam, pending disposal of the above Original Petition.” 2. Heard Sri.Antony Mukkath, the learned Senior Government Pleader appearing for the petitioners (State of Kerala and others) in the Original Petition/respondents in the O.A and Sri.P.M.Pareeth, the learned counsel appearing for the respondents in the Original Petition/applicants in the O.A before the Tribunal. 3. The prayers in Ext.P1 O.A (EKM) No.674/2019 filed by the OP(KAT).No.38 OF 2021 4 respondents herein before the Kerala Administrative Tribunal, Ernakulam Bench reads as follows: (See page No.22 of the paper book of this original petition) “i) An order quashing Annexure A1, A2 and A3 issued by the 4[th] , 2[nd] and 5[th] respondents respectively. ii) A declaration to the effect that the fixation of pay, grade promotions and ration promotions already granted to the applicants reckoning their pre-service training period as increment earning service cannot be underdone after more than 25 years as per Annexure A1 to A3. iii) To grant cost. iv) To grant such other reliefs this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case.” 4. The Tribunal after hearing both sides has rendered the impugned Ext.P3 final order dated 29.10.2019 in O.A(EKM) No.674/2019 whereby it has been ordered that the impugned orders at Annexure A1 to A3 initiated for recovery proceedings and refixtion of pay etc. are unreasonable and improper and thus be quashed on that ground. Thus the main pleas of the respondents herein have been allowed by the Tribunal. 5. It is this final order at Ext.P3 rendered by the Tribunal in the Original Application that is under challenge in this Original Petition filed at the behest of State of Kerala and other officials concerned. 6. The respondents herein (Original Applicants 3 in number) OP(KAT).No.38 OF 2021 5 had initially entered service as Village Extension Officers Grade II on 15.1.1993, 3.7.1994 and 6.12.1994 respectively and they had undergone requisite training period of six months and thereafter entered into the service. The pre service training period of six months of all the applicants have been rendered for all service benefits and the pay of the applicants have been fixed taking into consideration of the above said pre service training period and they have also been granted the time bound higher grade promotions and all other attendant benefits on that basis. It is also come on record that the 1[st] respondent has already retired from the service on 28.2.2020 and 2[nd] and 3[rd] respondents herein are due to retire from the service on 30.4.2023 and 31.5.2022 respectively. 7. It is an admitted case from both sides that after the lapse of about 26 long years after the initial entry of the service of the applicants, an audit objection has been belatedly raised and refixation of pay has been ordered as per impugned Annexure A1 order dated 12.10.2018, Annexure A2 order dated 18.12.2018 and Annexure A3 order dated 22.3.2019 issued by the respondent concerned in the Original Application on the ground that as per the norms of the OP(KAT).No.38 OF 2021 6 Government the above said pre service training period of the applicants could not have been lawfully counted for the increments and all other service benefits including pay fixation, time bound promotion etc. Thus obviously all the three applicants have overdrawn pay and allowances much beyond their entitlements on account of the fact that the pre service training period of six months after the initial entry in the post of Village Extension Officer have been illegally counted and that therefore, the applicants have to necessarily face the impugned orders of recovery and fixation of pay etc. 8. The Tribunal has held that the matter of issue is covered in favour of the applicants as per the orders and directions issued by the Apex Court in the celebrated case in **White Washer** 's case (State of Punjab v. Rafiq Masih (White Washer) reported in [(2015) 4 SCC 334]. It is important to refer the orders and directions issued by the Apex Court in para No.12 of **White Washer** 's case supra is reads as follows; “It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, OP(KAT).No.38 OF 2021 7 wherein recoveries by the employers would be impermissible in law: (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.” 9. Sub para (iii) of para No.12 of the **White Washer** 's case supra relates to the 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. Further sub para (v) of para 12 thereof deals with the situation 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. 10. After hearing both sides, we are of the firm view that the Tribunal has rightly held that the impugned recovery by itself ordered long after the lapse of more than 26 long years, is legally impermissible in view of the above said directions and orders OP(KAT).No.38 OF 2021 8 rendered by the Apex Court in **White Washer'** s case supra [(2015) 4 SCC 334]. As per the norms of the Government, it could not have been lawfully counted. The respondents herein/Original Applicants have no case that there are any enabling norms issued by the State Government or any other competent authority which authorises the counting of the above said pre service period for the purpose of all service benefits including increments, time bound grade promotions, pay fixation etc. However, the Tribunal cannot be said to be right and correct in holding that even prospective recovery pursuant to the impugned order is also barred. The respondents herein/original applicants have no case that there are any enabling norms issued by the State Government or any other competent authority, authorising the reckoning of pre service training period also for the purpose of increments, time bound grade promotion, pay fixation etc. 11. On the other hand, Sri.Antorny Mukkath the learned Senior Government Pleading appearing for the petitioners would point out that the special rules for the post of Village Extension Officer etc. has been promulgated as per G.O(Rt) No.18/1977/DED dated 30.6.1977 and the rules does not permit counting of the said pre OP(KAT).No.38 OF 2021 9 service training period for any such service benefits. The impugned orders at Annexure A1, A2 and A3 have been issued on 12.10.2018, 18.12.2018 and 22.3.2019 respectively. Indisputably the said pre service training period could not have been lawfuly counted, the Tribunal should not have restrain the respondents in the O.A/petitioners herein from giving effect to the recovery atleast on a reasonable prospective basis. Certainly recovery of pay for the past periods in question has been rightly restrained by the Tribunal. Such a view has also been strengthened by the views rendered by us in a recent judgment on 24.3.2021 in W.A No.323/2021 wherein this Court held that the last pay of the petitioner therein should be refixed notionally in the proper manner after affording an opportunity of being heard and thereafter the pensionary benefits of the petitioner should be commuted and disbursed based on such revised last pay and that otherwise it will amount to perpetuating an illegality through out the life of the pensioner and even during the period which family pension would have to be given to the claimant concerned and permitting such an action by the courts would amount to drainage of money from the public exchequer. Hence, we are of the OP(KAT).No.38 OF 2021 10 firm view that the Tribunal was wrong in holding to the limited extent that even prospective recovery is also barred. 12. Sri.Antony Mukkath, the learned Senior Government Pleader would point out that this Court may permit the recovery atleast from the date of issuance of the respective impugned orders at Annexure A1 dated 12.10.2018, A2 dated 18.12.2018 and A3 dated 22.3.2019. 13. Per contra, Sri.P.M.Pareeth, the learned counsel appearing for the original applicants would urge that the Tribunal cannot be said to have committed any illegality or unreasonableness in rendering the impugned verdict and that recovery at this stage will highly improper and may not be permitted by this Court. 14. We are view that at least the petitioners should be permitted to effectuate the impugned orders at Annexure A1 to A3 at least on a reasonable basis but after avoiding hardships to the applicants. We would order that prospective recovery from the pay and allowances of the 2[nd] and 3[rd] applicants and the monthly pension of the first applicant could be made by the petitioners for the period from 1.1.2021 onwards. OP(KAT).No.38 OF 2021 11 15. In the instant case, we are told that the 1[st] applicant has already retired from service on 28.2.2020 and the 2[nd] and 3[rd] applicants are due to retire from the service on 30.4.2023 and 31.5.2022. Accordingly, it is ordered that the competent authority among the petitioners may immediately issue separate show cause notice to each of the applicants and stating therein the details of the mistakes in the increments, pay fixations, time bound grade promotion etc. given to the respective applicants on the basis of the wrong reckoning of the above said pre service training period and may thereafter fix the last pay of the first applicant on that basis so also the pay of the 2[nd] and 3[rd] applications may also be refixed. But before that show cause notice, all requisite details should be given to each of the applicants and the applicants should be given a reasonable opportunity of being heard and that the versions of the applicant as to the correctness or otherwise of such proposed revised pay may also be taken into account and proper decision in that regard may be taken. Thereafter, the petitioners herein will be at liberty to effect recovery of the excess gratuity amount paid to the first applicant who have already retired on 28.2.2020 and recovery of the monthly OP(KAT).No.38 OF 2021 12 pension paid to the 1[st] applicant may be effected for the period from 1.1.2021 onwards. In other words, the recovery of the pay and allowances and the monthly pension for the past period prior to 1.1.2021 may not be recovered from the first applicant. So also similar action may also be finalised in the case of 2[nd] and 3[rd] applicants by ordering the recovery of pay and allowances from 1.1.2021 onwards and not for periods prior to that. Necessary orders may be passed for effectuating reduction of pay of the 2[nd] and 3[rd] applicants for the period prospectively from 1.1.2021 onwards. The directions and orders of the Tribunal at Ext.P3 will stand modified as above. With these observations and directions, the above Original Petition will stand finally disposed of. ## **Sd/-** ## **ALEXANDER THOMAS, JUDGE** **Sd/-** ab ## **K. BABU, JUDGE** OP(KAT).No.38 OF 2021 13 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE O.A.ALONG WITH EXHIBITS WITH MISCELLANEOUS APPLICATION.** - **ANNEXURE (A1) A TRUE COPY OF THE LETTER NO.A2236/2017 DATED 18.12.2018 ISSUED BY THE 4TH RESPONDENT TO THE 1ST APPLICANT.** - **ANNEXURE (A2) TRUE COPY OF THE LETTER NO.RD2-1943/18 DATED 18.12.2018 ISSUED BY THE 2ND RESPONDENT IN RESPECT OF 2ND APPLICANT.** - **ANNEXURE (A3) A TRUE PHOTO COPY OF THE LETTER NO.A2575/18(1) DATED 22.03.2019 ISSUED BY THE 6TH RESPONDENT TO THE 3RD APPLICANT TOGETHER WITH AUDIT OBJECTION IN RESPECT OF 3RD APPLICANT.** - **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY 2ND PETITIONER.** - **ANNEXURE R2(A) TRUE COPY OF THE ORDER IN OA NO.1919/2016.** - **EXHIBIT P3 TRUE COPY OF THE ORDER IN O.A. (EKM)NO.674/2019 DATED 29.10.2019.** - **EXHIBIT P4 TRUE COPY OF THE UNDERTAKING DATED 15.07.1993 SUBMITTED BY THE 1ST RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE UNDERTAKING DATED 30.03.2006 SUBMITTED BY THE 1ST RESPONDENT.** **EXHIBIT P6 TRUE COPY OF THE FORM OF OPTION (UNDERTAKING) DATED 01.04.2006 SUBMITTED BY THE 2ND RESPONDENT.** OP(KAT).No.38 OF 2021 14 **EXHIBIT P7** **TRUE COPY OF THE FORM OF OPTION (UNDERTAKING) DATED 01.12.2007 SUBMITTED BY THE 2ND RESPONDENT.** **EXHIBIT P8 TRUE COPY OF THE FORM OF OPTION (UNDERTAKING) DATED 27.05.2011 SUBMITTED BY THE 2ND RESPONDENT.** **EXHIBIT P9 TRUE COPY OF THE UNDERTAKING DATED 01.02.2006 SUBMITTED BY THE 2ND RESPONDENT.** **EXHIBIT P10 TRUE COPY OF DECLARATION/FORM OF OPTION DATED 15.06.2006 SUBMITTED BY THE 3RD RESPONDENT.** ## **RESPONDENTS EXHIBITS: NIL**