State of Kerala & Others v. A. Suresh Babu

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM TUESDAY, THE 12[TH] DAY OF OCTOBER 2021 / 20TH ASWINA, 1943** **OP(KAT) NO. 34 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OA (EKM) 802/2014 OF KERALA** **ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM PETITIONER/S:** 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 3 THE DISTRICT COLLECTOR, WAYANAD, PIN-671 121. 4 THE AUDIT OFFICER, OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL (GENERAL AND SOCIAL SECTOR AUDIT), BRANCH OFFICE, KARUNAKARAN NAMBIAR ROAD, THRISSUR, PIN-680 020. 5 THE ASSISTANT DIRECTOR, SURVEY AND LAND RECORDS (RE-SURVEY), MANANTHAVADY, WAYANAD, PIN-671 121. BY ADV GOVERNMENT PLEADER ## **RESPONDENT:** * A.SURESH BABU AGED 58 YEARS S/O E.K.GOVINDAN NAIR, RTD DEPUTY TAHSILDAR (RR) , RESIDING AT AMBADI HOUSE, (VIA) MANANTHAVADY, WAYANAD, O.P.(KAT). No. 34 Of 2020 2 PIN-670 645. *ADDRESS OF THE RESPONDENT IS CORRECTED. *ADDRESS OF THE SOLE RESPONDENT IS CORRECTED AS PER ORDER DATED 12/10/2021 IN I.A.1/21 IN OP KAT 34/20. AS FOLLOWS: A.SURESH BABU,S/O.E.K.GOVINDAN NAIR,'AMBADI HOUSE',THARUVANA (P.O.),MANANTHAVADY,WAYANAD,PIN-670 645.MOB-9446400801. SRI.B.UNNIKRISHNA KAIMAL, SR.GOVT.PLEADER THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 12.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(KAT). No. 34 Of 2020 3 # **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** **===================================** ## **O.P.(KAT). No. 34 Of 2020** _(arising out of the impugned final Order dated 21.03.2019 in O.A. (EKM) No.802/2014 of the KAT, TVM. Bench)_ **========================================= Dated this the 12th of October, 2021** ## **J U D G M E N T** ## **Alexander Thomas, J.** The prayers of the instant original petition are as follows [ _see_ _page no. 8 of the paper book of the O.P_ ]: _“(a) To set aside Exhibit P7 order issued by the 4[th] respondent._ _(b) Declare that the 2[nd] time bound higher grade was given to the applicant in accordance with Annexure A1 pay revision order and Annexure A2 Government Order and Annexure A5 circular has no significance in so far as granting higher grade to the applicant before the date of the said order, as the same has only prospective effect in operations._ _(c) To issue such other appropriate order or direction as this Hon'ble Tribunal deems just and fit in the circumstance of the case.”_ 2. Heard Sri.B.Unnikrishna Kaimal, learned counsel appearing for the petitioners in the OP/ respondents 1 to 5 in the O.A. In the nature of the orders proposed to be passed by this Court in this O.P., notice to the sole applicant in the OA/respondent in the OP will stand dispensed with. 3. The prayers in Ext.P1 O.A. (EKM) No.802/2014 filed at the instance of R1 herein before the Tribunal are as follows [ _see page_ O.P.(KAT). No. 34 Of 2020 4 ## _nos. 24 & 25 of the paper book of the O.P_ ]: _“(a) To set aside Annexure A7 order issued by the 4[th] respondent._ _(b) Declare that the 2[nd] time bound higher grade was given to the applicant in accordance with Annexure A1 pay revision order and Annexure A2 Government Order and Annexure A5 circular has no significance in so far as granting higher grade to the applicant before the date of the said order, as the same has only prospective effect in operations._ - _(c) To issue such other appropriate order or direction as this Hon'ble Tribunal deems just and fit in the circumstance of the case.”_ 4. The Tribunal after hearing both sides, has held that the matter in issue is squarely covered by the dictum laid down by the Apex Court in celebrated case in the celebrated case in **State of** **Punjab Vs. Rafiq Masih, (White Washer's case) reported in 2015 (4) SCC 334** , as modified by the subsequent Judgment by the Apex Court in the case in **State of Punjab Vs. Jagdev Singh, [(2016) 14 SCC 267]** . Further that the objection regarding the grant of the erroneous higher grade was raised only about 12 years after the erroneous grant and therefore the order for query issued still later on 20.04.2014 directing recovery of the amount will be highly oppressive unfair and unreasonable. Accordingly, the Tribunal has ordered while upholding the Audit objection and the impugned orders, the respondents in the OP shall not effect any recovery from the applicant in pursuance of Annexures R4 and R7. In other words, all what that has been interdicted by the Tribunal is only the actual recovery and that O.P.(KAT). No. 34 Of 2020 5 the impugned final order has been upheld. A similar case has been dealt with by the Division Bench of this Court in the Judgment dated 05.10.2021 in OP(KAT) NO.264/2021 arising out of T.A No.5919/2012, it has been clearly held that the contention of the learned Senior Government Pleader that the dictum laid down by the Apex Court in **Jagdev Singh's case** [2016 (14) SCC 267] will not in any manner dilute the impact of the directions issued by the Apex Court in White Washers case (supra) [2015 (4) SCC 334] para 18 more particularly Clauses 1,2,4 & 5 ie, clauses other than Clause 3 of para 18. The main modification made by the Apex Court in **Jagdev Singh's Case** (supra) is only regarding the effect of the directions issued in Clause 3 of Para 18 of **White Washers Case (supra),** that in the cases where undertaking has been given by the employer for refund of the amounts. Even if there has been any undertakings given by the sole respondent herein, the other clauses in para 18 in **White Washers Case (supra)** would squarely apply in this case and hence, the Tribunal was fully justified in issuing the impugned directions in the O.A. It will also be pertinent to refer to yet another judgment of the Division Bench of this Court rendered on 28.01.2021 in OP(KAT) No. 255/2020 arising out of the OA 1365/2018 on the file of KAT, Thiruvananthapuram, more O.P.(KAT). No. 34 Of 2020 6 ## particularly paragraphs Nos. 6 to 9 thereof, which read as follows: “6. According to the learned Senior Government Pleader, the reliance placed by the Tribunal on the judgment in Rafiq Masih supra [(2015) 4 SCC 334] was not legally valid and the original petition ought to have been dismissed on the basis of the judgment of the Hon'ble Supreme Court in High Court of Haryana and Punjab v Jagdev Singh reported in [AIR 2016 SC 3523] wherein the Hon'ble Supreme Court had held that the principles laid down in Rafiq Masih supra [(2015) 4 SCC 334] will not apply in the cases of employees who have given an undertaking to the effect that excess amounts paid will be refunded. The learned counsel for the respondent pointed out that the above submission cannot be countenanced in the light of the fact that the Hon'ble Supreme Court in Jagdev Singh supra [AIR 2016 SC 3523] did not hold that the earlier judgment in Rafiq Masih supra [(2015) 4 SCC 334] was wrong and had only carved out a distinction in cases coming under the second criterion of employees noted in paragraph 18 of the judgment in Rafiq Masih supra [(2015) 4 SCC 334]. In Rafiq Masih supra [(2015) 4 SCC 334], the Hon'ble Supreme Court held as follows: “18. 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, 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, eventhough 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 extent, as would far outweigh the equitable balance of the employer's right to recover.” 7. In the subsequent decision in Jagdev Singh supra [AIR 2016 SC 3523] in paragraph 9 the Apex Court held as follows: “9. The submission of the respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the State. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the respondent was clearly on notice of the fact that a future refixation or revision may warrant an adjustment of the excess payment, if any, made.” In paragraph 10 of the judgment, the Apex Court extracted paragraph 18 of the judgment in Rafiq Masih supra [(2015) 4 SCC 334]. Thereafter in paragraph 11, the apex Court held as follows:- “11. The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been O.P.(KAT). No. 34 Of 2020 7 made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.” 8. The effect of the judgment in Jagdev Singh supra [AIR 2016 SC 3523] on the judgment in Rafiq Masih supra [(2015) 4 SCC 334] was considered by a Division Bench of this Court in the judgment in State of Kerala and others v. Vinod Kumar C.R. reported in [2020 (4) KLT 230]. In paragraph 7 of the judgment the Division Bench held as follows:- “ …....... …....... …...... On a reading of both Rafiq Masih and Jagdev Singh, it is difficult for us to accept the contention of the learned Government Pleader that Jagdev Singh is a complete departure from the principles laid down in Rafiq Masih. From a reading of paragraphs 10 and 11 of Jagdev Singh, it appears to us that the Supreme Court had only clarified that in the case of recovery from retired employees or employees who are due to retire within one year of the order of recovery, there would be no bar in ordering recovery, if the employee concerned had executed an undertaking agreeing to refund any excess payment. We cannot read Jagdev Singh as having laid down the proposition that in every case where there is an undertaking as aforesaid, recovery can be ordered from the employee concerned whatever be the point of time that such payment was made. We cannot overlook the fact that there is not even a suggestion in Jagdev Singh that in the event of there being an undertaking to refund excess pay, none of the situations envisaged as items (i) to (v) of Rafiq Masih can be pressed into service. 9. It can thus be seen that the Hon'ble Supreme Court did not interfere with the directions contained in paragraph 18 of the judgment in Rafiq Masih supra [(2015) 4 SCC 334] regarding clauses 1, 3, 4 and 5. In the case on hand, it can be seen from the facts narrated above that the mistake regarding the grant of Second and Third Time Bound Higher Grades occurred in 2001 and 2006 respectively. This was 14 and 9 years respectively prior to the retirement of the respondent. So also, the decision to cancel the Second and Third Time Bound Higher Grades granted to the respondent was finally taken only as per Annexure A8 order dated 25.01.2018, which was much after the retirement of the respondent. In the above circumstances, the dictum laid down in Rafiq Masih supra [(2015) 4 SCC 334] squarely applies to the facts of this case. The order for recovery is issued after the retirement of the respondent. The respondent belongs to Group C Class 3 category of employees and the recovery is ordered five years after the occurrence of the mistake as stipulated in Rafiq Masih supra [(2015) 4 SCC 334]. The judgment in Jagdev Singh supra [AIR 2016 SC 3523] has not in any way modified the above said conditions contained in the judgment in Rafiq Masih supra [(2015) 4 SCC 334]. We do not find any illegality or irregularity or impropriety in the order O.P.(KAT) No.255 of 2020 10 Ext.P8 of the Tribunal. No grounds have been made out warranting interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. The original petition fails and the same is accordingly dismissed. In the circumstances of the case, there will be no order as to costs.” 5. Therein, this Court has particularly dealt with the judgment of a Division Bench of this Court in the case in _**State of Kerala & Others**_ _**Vs. Vinod Kumar C.R.** [2020 (4) KLT 237]_ para 7. After taking into O.P.(KAT). No. 34 Of 2020 8 consideration of all these aspects we are of the firm view that the impugned action of recovery which has been initiated 12 years after the erroneous grant and recovery order actually was issued even still later only on 20.04.2014 has to be only held as oppressive, unjust and unfair. In other words, no grounds for judicial review and superintendence have been made out in the instant case for warranting interdiction of the considered verdict of the Tribunal at Ext.P7 dated 21.03.2019 in the above OA. 5. The Registry will forward a copy of this judgment to the sole respondent in the OP to the newly corrected address herein by speed post for necessary information. With the above observations and directions the above OP(KAT) will stand dismissed. Sd/- ## **ALEXANDER THOMAS** ## **JUDGE** Sd/- **VIJU ABRAHAM JUDGE** Nsd O.P.(KAT). No. 34 Of 2020 9 ## **APPENDIX OF OP(KAT) 34/2020** PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE O.A (EKM) 802/2014 ALONG WITH EXHIBIT P1(A1) TO EXHIBIT P1(A8(A) EXHIBIT P1(A1) TRUE COPY OF THE RELEVANT EXTRACT OF PAY REVISION ORDER 1998 EXHIBIT P1(A2) TRUE COPY OF THE GOVERNMENT ORDER NO 54/92/ (138) FIN DATED 6.11.1992. EXHIBIT P1(A3) TRUE COPY OF THE ORDER GRANTING SECOND HIGHER GRADE TO THE APPLICANT DATED 17.4.1999 EXHIBIT P1(A4) TRUE COPY OF THE AUDIT OBJECTION MADE OUT BY THE 4TH RESPONDENT EXHIBIT P1(A5) TRUE COPY OF THE RELEVANT EXTRACTS OF CIRCULAR NO 46/2008/FIND DATED 8.8.2008 EXHIBIT P1(A6) TRUE COPY OF THE REPRESENTATION MADE BY THE APPLICANT BEFORE THE 4TH RESPONDENT DATED 21.7.2011 EXHIBIT P1(A7) TRUE COPY OF THE ORDER DATED 20.5.2014 PASSED BY THE 4TH RESPONDENT EXHIBIT P1(A8) TRUE COPY OF THE LETTER ISSUED TO THE APPLICANT COMMUNICATING ISSUANCE OF ANNEXURE A7 ORDER DATED 16.6.2014 EXHIBIT P1(A8(A) TRUE COPY OF THE ENGLISH TRANSLATION OF ANNEXURE A8 EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD PETITIONER ON 16.12.2014 ALONG WITH EXHIBIT P2(R3(A) EXHIBIT P2(R3(A) TRUE COPY OF THE GO(P) NO 46/2008/FIND DATED O.P.(KAT). No. 34 Of 2020 10 8.8.2008 |EXHIBIT P3|A TRUE COPY OF THE REPLY STATEMENT FILED BY| |---|---| ||THE FOURTH PETITIONER ON 23.3.2015| |EXHIBIT P4|TRUE COPY OF THE REJOINDER FILED BY THE| ||RESPONDENT ON 17.3.2015| |EXHIBIT P5|TRUE COPY OF THE REPLY STATEMENT FILED BY| ||THE 2ND PETITIONER ON 15.5.2015| |EXHIBIT P6|TRUE COPY OF THE REPLY STATEMENT FILED BY| ||THE FIRST PETITIONER ON 20.12.2017 ALON WITH| ||EXHIBIT P5(R1) (A) TO EXHIBIT P5(R1)(b)| |EXHIBIT P6 (R1(A)|TRUE COPY OF THE GOVERNMENT LETTER NO| ||41904/PRC A3/93/FIND DATED 16.10.1993.| |EXHIBIT R6 (R1(B)|TRUE COPY OF THE JUDGMENT IN WA NO 759/07| ||DATED 18.8.2007| |EXHIBIT P6(R1(C)|TRUE COPY OF THE JUDGMENT IN WA NO 1209.09| ||DATED 24.6.2009| |EXHIBIT P6(R1(D)|TRUE COPY OF THE EXTRACT OF JUDGMENT DATED| ||1.7.2009 IN RP NO 608/2006| |EXHIBIT P7|TRUE COPY OF ORDER OF THE KERALA| ||ADMINISTRATIVE TRIBUNAL DATED 21.3.2019 IN| ||THE AFORESAID ORIGINAL APPLICATION| |//true copy//|| |PA to Judge||