State of Kerala and Others v. Sreedevi T.R.

**“CR”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 22ND DAY OF OCTOBER 2019 / 30TH ASWINA, 1941** ## **OP(KAT).No.348 OF 2019** **ORDER IN OA 219/2018 DATED 30-10-2018 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA- 695001.** - **2 THE SECRETARY, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695001, KERALA.** - **3 THE DIRECTOR, HEALTH SERVICES, VANCHIYOOR P.O., THIRUVANANTHAPURAM- 695035, KERALA.** - **4 THE ACCOUNTANT GENERAL, M.G.ROAD, THIRUVANANTHAPURAM- 695001, KERALA.** - **5 THE SUPERINTENDENT, GENERAL HOSPITAL, THIRUVANANTHAPURAM- 695035, KERALA.** - **6 THE LAY SECRETARY AND TREASURER, GENERAL HOSPITAL, THIRUVANANTHAPURAM- 695035, KERALA.** - **7 THE SUPERINTENDENT, CHEST DECEASES HOSPITAL, PULAYANARKOTTA, THIRUVANANTHAPURAM- 695031, KERALA.** ## **BY SR.GP SRI.ANTONY MUKKATH** 2 O.P.(KAT) No.348 of 2019 ## **RESPONDENT/S:** **SREEDEVI.T.R, W/O.S.BALACHANDRAN NAIR, NURSING SUPERINTENDENT GRADE-II, CHEST DECEASE HOSPITAL, PULAYANARKOTTA, THIRUVANANTHAPURAM- 695031, KERALA, RESIDING AT T.C 13/734, KRISHNAKRIPA, MRA-171, VANCHIYOOR P.O., THIRUVANANTHAPURAM, KERALA- 695035.** **R1 BY ADV. SRI.RAGHUL SUDHEESH R1 BY ADV. SMT.J.LAKSHMI R1 BY ADV. SRI.D.JAYAKRISHNAN** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 22.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(KAT) No.348 of 2019 3 ## **“CR”** ## **JUDGMENT** **Dated this the 22[nd] day of October 2019** ## **V.G.ARUN, J.** The State of Kerala and its officers have filed this original petition, aggrieved by Ext.P4 order of the Kerala Administrative Tribunal. By the impugned order, the Tribunal allowed the original application filed by the respondent herein and set aside the recovery ordered as per Annexure A1, but affirmed the re-fixation of scale of pay of the applicant and directed pension and other benefits to be sanctioned and disbursed depending upon such re-fixation. 2. The short facts leading up to the impugned order, with reference to the parties and the exhibits as in the original application, are as follows:- O.P.(KAT) No.348 of 2019 4 The applicant had joined Government service as Staff Nurse Grade II on 14.12.1989. She entered on leave without allowance on 30.4.1990 and rejoined duty on 19.1.1994. The probation of the applicant was thereafter declared on 17.2.1996. The applicant was promoted as Head Nurse with effect from 25.1.2018 and was due to retire on 31.1.2019. While so, by Annexure A1 dated 1.2.2018, sanction was accorded to recover an amount of Rs.2,00,740/- from the salary of the applicant, being the excess salary disbursed to her due to irregular fixation of pay. The mistake in fixation of pay with effect from 1.5.2005 was found out and pointed out in the audit report dated 30.11.2017. The mistake is alleged to have occurred as a result of the reckoning of service of the applicant with effect from her date of entry in service for the purpose of granting higher grade, whereas only the service O.P.(KAT) No.348 of 2019 5 from the date on which the applicant rejoined duty after availing leave without allowance during the probation period, should have been reckoned. The applicant challenged Annexure A1 order, as also Annexure A2 statement containing the details of pay and allowance drawn in excess during the period from 1.5.2005 to 30.11.2017. The challenge was primarily on the ground that the recovery proposed, after a lapse of more than 12 years is illegal. In support of this challenge, reliance was placed on the decision of the _**v.**_ Honourble Supreme Court in _**State of Punjab and others**_ . _**Rafiq Masih (White Washer) and others [(2015) 4 SCC 334]**_ The other ground of challenge was based on the violation of the _principles of natural justice_ , inasmuch as the impugned order was issued without prior notice and opportunity of hearing to the applicant. O.P.(KAT) No.348 of 2019 6 3. The respondents countered the challenge placing reliance on Annexures R3(a) and R3(b), the option form and an undertaking submitted by the applicant during the pay revision of 2006 and the decision of the Honourable Supreme Court in _**High Court of Punjab and Haryana and others v. Jagdev Singh [(2016) 14 SCC 267]**_ . By the impugned order, the Tribunal set aside the recovery ordered as per Annexure A1 and affirmed the re-fixation of the applicant's scale of pay. 4. Heard . 5. The learned Senior Government Pleader reiterated the contentions raised before the Tribunal and submitted that, after having submitted Ext.R3(b), agreeing to refund excess pay and allowance, if any, drawn by her, the applicant cannot challenge Annexure A1, which was issued on finding that excess pay was drawn. It is contended that the Tribunal O.P.(KAT) No.348 of 2019 7 committed a mistake in placing reliance on the propositions in _**Rafiq Masih**_ 's case, in view of the clarification in _**Jagdev Singh**_ 's case. 6. As rightly found by the Tribunal, denial of relief on the basis of Annexure R3(b) undertaking would be unjustified for the reason that Annexure R3(b) was submitted by the applicant while exercising option during the 2006 Pay revision. Two quinquennial pay revisions have been implemented thereafter. The other question to be considered is with respect to the applicability or otherwise of the stipulations in _**Rafiq Masih**_ 's case. Therein, the Honourable Supreme Court considered a batch of cases in which monetary benefits were granted to the employees in excess of their entitlement. After referring to some precedents, including the decision in _**Syed Abdul Qadir and others v. State of Bihar**_ O.P.(KAT) No.348 of 2019 8 ## _**and others [(2009) 3 SCC 475]**_ , the Apex Court summarised few situations, though not all, wherein recoveries by the employer would be impermissible in law. The situations ## postulated in _**Rafiq Masih**_ 's case are as follows:- _**“** 18. …....._ _(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.”_ ## 7. The short facts in _**Jagdev Singh**_ , which according to the Senior Government Pleader is more applicable to the case at hand, are as follows:- Jagdev Singh was a civil judge in the Haryana Superior Judicial Service. By notification dated 28.9.2001, the pay scale O.P.(KAT) No.348 of 2019 9 of Judicial Officers was revised. Going by the Rules under which the revision of pay scale was brought about, each officer was required to submit an undertaking that any excess payment, found out at a later stage, will be refunded to the Government either by adjustment against future payments due or otherwise. Jagdev Singh furnished the undertaking and was granted the revised scale of pay. Later, disciplinary proceedings were initiated against Jagdev Singh and he was compulsorily retired from service on 12.2.2003. In the meanwhile, based on the recommendations of the First National Judicial Pay Commission (Shetty Commission), the pay scales of the Judicial Officers in Haryana were revised with effect from 1.1.1996, which resulted in the demand for refund, presumably by reason of the termination from service. Thereupon, as part of the exercise undertaken for adjustment O.P.(KAT) No.348 of 2019 10 of excess payments made to judicial officers based on the first revision, notice for recovery of an amount of Rs.1,22,003/was served on Jagdev Singh in 2004. The writ petition filed by Jagdev Singh, challenging the proceedings for recovery was allowed, based on proposition No.(ii) in _Rafiq Masih_ , prohibiting recovery from retired employees, or employees who are due to retire within one year. Aggrieved, the High Court of Punjab and Haryana went in appeal. The Honourable Supreme Court, after analysing the facts of the case, held that the principle enunciated as proposition (ii) in _**Rafiq Masih**_ will not apply to the fact situation, since, in the first instance itself, _**Jagdev Singh**_ was put on notice that any payment found to have been made in excess would be required to be refunded and he had furnished an undertaking to that effect while opting for the revised scale of pay. O.P.(KAT) No.348 of 2019 11 8. We are in agreement with the finding of the Tribunal that the decision in _**Jagdev Singh**_ 's case was rendered on the particular facts of that case and cannot be relied on for the purpose of denying the benefit of the propositions Nos.(iii) and (v) in _**Rafiq Masih**_ 's case to the applicant. We also notice that there the refund was ordered within three years while here there was a delay of 12 years in detecting the mistake itself. 9. In this context it would be apposite to refer to the decision of the Honourable Supreme Court in _**Syed Abdul Qadir**_ also, which, though earlier in point of time than _**Rafiq Masih**_ and _**Jagdev Singh**_ , was rendered by a Bench of superior strength. In _**Syed Abdul Qadir**_ , Assistant Teachers of the Nationalised Schools in Bihar were granted the benefit of revision of pay scale as per decision dated 18.12.1989. Later, O.P.(KAT) No.348 of 2019 12 the pay fixation was found to be incorrect and was sought to be corrected by an order dated 20.2.1993, followed by order dated 16.11.2000. The matter went up to the Apex Court and the issue was finally settled in the following manner:- _“58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar, V. Gangaram v. Director, Col. B.J. Akkara (Retd.) v. Govt. of India, Purshottam Lal Das v. State of Bihar, Punjab National Bank v. Manjeet Singh and Bihar SEB v. Bijay Bhadur._ _59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants_ O.P.(KAT) No.348 of 2019 13 _also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.”_ From a conspectus of the principles evolving from the decisions of the Apex Court, we find that the Tribunal had rightly relied on proposition numbers (iii) and (v), for setting at naught the recovery initiated after 12 ½ years. That the applicant retired from service on 31.1.2019 is an added factor O.P.(KAT) No.348 of 2019 14 for rejecting the challenge against the impugned order of the Tribunal. In the result, the original petition is dismissed. No order as to costs. **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** Scl/22.10 O.P.(KAT) No.348 of 2019 15 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A PHOTO COPY OF THE ORIGINAL APPLICATION NO.219/2018 ALONG WITH ANNEXURES.** **EXHIBIT P1(A1) TRUE COPY OF ORDER NO.B1-1059/2018/GHT DATED 01.02.2018.** **EXHIBIT P1(A2) TRUE COPY OF STATEMENT SHOWING THE DETAILS OF PAY AND ALLOWANCES ALLEGEDLY DRAWN IN EXCESS BY THE APPLICATION FOR THE PERIOD FROM 01.05.2005 TO 30.11.2017.** **EXHIBIT P1(A3) TRUE COPY OF ORDER NO.EE2/3111/2018/DHS DATED 25.01.2018.** **EXHIBIT P2** - **TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT IN THE ORIGINAL APPLICATION ALONG WITH ANNEXURES.** - **EXHIBIT P2 R3(A) TRUE COPY OF PAY FIXATION AS PER G.O. (P)NO.145/2006 FIN DATED 25.03.2006.** - **EXHIBIT P2 R3(B) TRUE COPY OF THE UNDERTAKING OF THE APPLICANT DATED 24.04.2006.** - **EXHIBIT P3 TRUE COPY OF THE RE-JOINTER FILED BY THE APPLICANT IN THE ORIGINAL APPLICATION.** **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 30.10.2018 IN O.A.NO.219/2018.**