Sundaralal P.N v. Cochin University of Science and Technology

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anu Sivaraman
Judgment Date: 2017-12-19
Court Decision / Holding: Exhibit P15 is set aside. There will be a direction to the respondents to re-fix the pensionary benefits due to the petitioner, taking note of the pay drawn by him in the post of Duplicator Operator. Orders in this regard shall be passed within two months from the date of receipt of this judgment. The arrears shall be calculated and disbursed to the petitioner within two months thereafter. The writ petition is ordered accordingly.
Final Disposition: Writ petition allowed; remedy granted in terms of pension re-fixation and arrears disbursement.

Parties to the Case

Appellants / Petitioners

Sundaralal P.N

Respondents

Cochin University of Science and Technology, Kochi
The Joint Director of Local Fund Audit, Kochi

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri. Vincent Joseph (Chundatt)

Counsels for Respondents

• Adv. SRI.S.P.Aravindakshan Pillai, SC
• Senior Government Pleader Sri E.S.Asharaf

Case Synopsis & Summary

This writ petition challenges Exhibit P15, an order by the Cochin University of Science and Technology directing the finalisation and payment of petitioner's pension and retirement benefits based on his last drawn salary. Sundaralal P.N., a retired Duplicator Operator, was promoted on 1.9.2004 and placed in the pay scale of Rs.3350-5275, with a corresponding revised scale Rs.5650-8790. He retired on 31.12.2016 while holding the post of Duplicator Operator. After retirement, the Kerala State Audit Department objected to the fixation of his pay and the resulting pensionary entitlements, contending that the grant of the higher scale was erroneous. Exhibit P15, issued by the University, fixed the pensionary benefits as per the revised pay from 1.9.2004 and provided for recovery of excess salary drawn. The University explains that pay scales were subsequently made available by Government and that the Syndicate, in 18.10.2008, accepted a committee’s recommendations to grant the higher scale; from 2009 the Government’s revised scales were applicable to the University. The Audit objection prompted the recovery proposal, but the petitioner argues that the fixation was not his fault and cites Supreme Court guidance suggesting no recovery in similar circumstances. The court ultimately holds Exhibit P15 unsustainable and directs re-fixation of pensionary benefits in line with the pay actually drawn, with arrears payable within two months of the judgment.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that his pay was fixed in the higher scale in 2004 by a competent Syndicate decision and that corresponding revised scales were later made available by Government; the error was detected only after retirement, and recovery of excess pay would unjustly deprive him of pension benefits. He argues reliance on established Supreme Court principles that recovery should not be ordered where fault lies not with the employee, and seeks final fixation of pensionary benefits based on the higher pay actually drawn, with arrears if due.

Contentions of Respondents

Respondents contend that the 2004 fixation was erroneous and could have been granted only from 1.7.2009; the Academic/Syndicate decision, coupled with post-retirement audit objections, justifies correcting pensionary benefits and recovering excess salary; the Government's pay revisions and the university’s adherence to audit rulings are cited to justify Exhibit P15.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Punjab v. Rafiq Masih (White Washer) and others	(2015) 4 SCC 334	Positive	Cited to support the proposition that recovery of excess pensionary payments due to erroneous fixation should not be countenanced when the fault does not lie with the employee; court relies on this authority to hold that the petitioner is entitled to pension as fixed.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 19TH DAY OF DECEMBER 2017/28TH AGRAHAYANA, 1939** ## **WP(C).No. 10450 of 2017 (E)** **----------------------------** ## **PETITIONER:** ## **----------** **SUNDARALAL P.N,** **DUPLICATING OPERATOR (RETIRED), COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI-22, RESIDING AT PADANNATHARA HOUSE, PATTANAKKAD PO, ALLEPPEY. 688531.** **BY ADV. SRI.VINCENT JOSEPH (CHUNDATT)** ## **RESPONDENT(S):** **--------------** **1. COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY PO, KOCHI. 682022, REPRESENTED BY ITS REGISTRAR.** **2. THE JOINT DIRECTOR OF LOCAL FUND AUDIT, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY PO, KOCHI. 682022.** **R1 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAI,SC R2 BY SENIOR GOVERNMENT PLEADER SRI E.S.ASHARAF** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 10450 of 2017 (E)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1 COPY OF THE UNIVERSITY ORDER NO. AD. A4/174/98(1) DTD. 22.7.1999. EXHIBIT P2 COPY OF THE UNIVERSITY NOTIFICATION NO.AD.A3/22838/83 DTD.6.8.2004. EXHIBIT P3 COPY OF THE UNIVERSITY MEMO NO.AD.A3/22838/83 DTD . 31.8.2004. EXHIBIT P4 COPY OF THE UNIVERSITY ORDER NO AD.A3/22838/83 DTD 7.9.2004. EXHIBIT P5 COPY OF THE UNIVERSITY ORDER NO. AD.A3/22838/83 DTD. 4.10.2004. EXHIBIT P6 COPY OF THE UNIVERSITY ORDER NO. FIN.II/F/908/99 DTD, 6.12.2004. EXHIBIT P7 COPY OF THE UNIVERSITY ORDER NO. AD.A3/22838/83 DTD. 12.1.2016, EXHIBIT P8 COPY OF THE UNIVERSITY ORDER NO.AD.G2/22838/839 (VOL.II) DTD. 20.11.2008. EXHIBIT P9 COPY OF THE UNIVERSITY PAY FIXATION STATEMENT NO.FIN.II/PR-04/901/2006/01433 DTD.16.2.2008. EXHIBIT P10 COPY OF RELEVANT PAGES OF GOVERNMENT PAY REVISION ORDER 2009-G.O.(P) NO. 86/2011/FIN DTD.26.2.2011, EXHIBIT P11 COPY OF THE UNIVERSITY PAY FIXATION STATEMENT NO. FIN.II/PR-2009/2011/1433 DTD. 15.7.2011. EXHIBIT P12 COPY OF THE UNIVERSITY ORDER NO. AD.GI/13968/03 DTD,.12.10.2012, EXHIBIT P13 COPY OF THE UNIVERSITY PAY FIXATION STATEMENT NO.FIN.II/PR-2014/2016 1433 DTD.22.3.2016. EXHIBIT P14 COPY OF THE UNIVERSITY ORDER NO. FIN.IV/MISC/2016 DTD.20.12.2016, EXHIBIT P15 COPY OF THE UNIVERSITY ORDER NO. FIN.IV/47/P/2016 DTD. 16.3.2017, EXHIBIT P16 COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO.14696 OF 2013.** ## **WP(C).No. 10450 of 2017 (E)** ## **----------------------------** ## **RESPONDENT(S)' EXHIBITS -----------------------** **R1(A) TRUE COPY OF THE ORDER NO AD.G2/22838/83 (VOL.11) DATED 20.11.2008. R1(B) TRUE COPY OF THE LETTER NO AD.G1/22838/83 DATED 3.2.2017 ALONG WITH ITS ENCLOSURES. R2(A) COPY OF THE RELEVANT PAGE OF PAY REVISION ORDER. R2(B) TRUE COPY OF LETTER NO 201615/B2/12/H.EDN DATED 20.3.2014. R2(C) COPY OF THE SANCTION ORDER.** **/TRUE COPY/ K.V. P.S.TO JUDGE** ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(C).No.10450 of 2017** **= = = = = = = = = = = = = = = Dated this the 19th day of December, 2017** ## **JUDGMENT** - 1.This writ petition is filed challenging Exhibit P15 order and directing the 1[st] respondent University to finalise and disburse his full pension and retirement benefits based on his last drawn salary. - 2.Heard the learned counsel for the petitioner, the learned Government Pleader and the learned standing counsel appearing for the 1[st] respondent. - 3.It is contended that the petitioner had been appointed as peon in the 1[st] respondent University on 9.7.1999. He was promoted as Duplicator Operator with effect from 1.9.2004 and his pay was fixed in the scale of pay of Rs.3350-5275. It is stated that he retired from service on 31.12.2016, while holding the post of Duplicator Operator. It is stated that the Audit Department had raised an objection with regard to the pensionary claims of the petitioner stating that the grant of the W.P.(C).No.10450/17 2 scale of pay Rs.3350-5275 and its revised scale of pay of Rs.5650-8790 was erroneous. It is, therefore, contended that the petitioner was not entitled to be granted the pay scale of Rs.3350-5275 in the post of Duplicator Operator w.e.f. 1.9.2004 and also to the revised scale of pay of 5650-8790. In the above circumstances, the University had fixed the pay and pensionary benefits of the petitioner accordingly and had issued Exhibit P15 order directing the payment of pensionary benefits. It was also stated that the excess salary drawn by the petitioner from 1.9.2004 would be deducted from the DCRG due to the petitioner. - 4.The learned counsel for the petitioner contends that the petitioner had been placed in the scale of pay which had been sanctioned by the Government later. It is stated that the grant of scale of pay of Rs.3350-5275 and its corresponding scale to the petitioner was not due to any fault committed by the petitioner. It is also contended that the error in fixation of pay had been pointed out by the State Audit Department only after W.P.(C).No.10450/17 3 the petitioner's retirement and that this Court as well as the Apex Court in similar circumstances has directed that there need be no recovery made in such situations. 5.A counter affidavit has been filed on behalf of the 1[st] respondent University contending that prior to 2009 pay revision, the Syndicate of the University used to adopt the Pay Revision orders issued by the Government from time to time. It is stated that from 2009 onwards the Government had been issuing orders making the revised pay scales applicable to University as well. It is stated that the Syndicate had decided on 18.10.2008 to accept the report of the Committee constituted to address the grievance of the employees of the University and to enhance the scale of pay applicable to Duplicator Operator to Rs.3350-5275. The petitioner had been granted the said scale of pay w.e.f. 1.09.2004 as also its corresponding revised scale of Rs.5650-8790. It is stated that pursuant to the acceptance of the recommendations in respect of the 9[th] pay revision, the Government had made available its W.P.(C).No.10450/17 4 scale of pay and its corresponding increases to the post of Duplicator Operator as well. However, the Joint Director of Kerala State Audit Department had objected to the grant of the above scale of pay and had directed the re-fixation of pensionary benefits in the reduced scale of pay. It is on that basis that Exhibit P15 order has been issued, it is stated. It is stated that the University has also approached the Government against the objection raised by the Joint Director of Kerala State Audit Department, Local Fund Audit on the ground that the scale of pay had been made available by the Government itself to the post held by the petitioner. - 6.A counter affidavit has been filed on behalf of the 2[nd] respondent as well. It is stated therein that the decision of the Syndicate of the University on 18.10.2008 has revised the scale of pay of Duplicator Operator to Rs.3350-5275 and the grant of said scale of pay as well as the revised pay to the petitioner from 1.9.2004 was erroneous and could have been granted only w.e.f. 1.7.2009. It is stated that the petitioner W.P.(C).No.10450/17 5 was not entitled to the scale of pay granted by the University w.e.f. 1.9.2004. It is therefore contended that the revision of the pensionary benefits as per Exhibit P15 and the proposal to recover the excess pay was well in order. 7.I have considered the contentions advanced. It was not in dispute that the petitioner had been granted the scale of pay of Rs.3350-5275 to the post of the Duplicator Operator on the strength of the competent order issued by the Syndicate. It is stated that the corresponding enhanced scales of pay were also granted to him. It is not in dispute that w.e.f. 17.7.2009 the scale of pay had been made available to the persons who held the post of Duplicator Operator. In the above view of the matter, the only mistake alleged is with regard to the enhancement of scale of pay for the period from 1.9.2004 to 1.7.2009. The petitioner was a Class IV employee and was working as peon under the 1[st] respondent. He was promoted as Duplicator Operator w.e.f. 1.9.2004. He was granted the scale of pay on the strength of the Syndicate decision. There W.P.(C).No.10450/17 6 is absolutely no contention raised that the petitioner was in any way responsible for the payment of enhanced scale of pay w.e.f. 1.9.2004. The petitioner had retired from service on 31.12.2016. It was only thereafter that the alleged mistake in the fixation of pay had been detected. - 8.In the above view of the matter, taking note of the decision of the Apex Court in **State of Punjab v. Rafiq Masih (White Washer) and others** [(2015)4 SCC 334], I am of the opinion that the action of the 2[nd] respondent to limit the pensionary benefits due to the petitioner and to recover the amounts allegedly drawn in excess by him cannot be countenanced. The petitioner, who had drawn his pay at the higher scale on the strength of the competent decision of the Syndicate, is entitled to enjoy the benefits of the same. - 9.In the result, Exhibit P15 is set aside. There will be a direction to the respondents to re-fix the pensionary benefits due to the petitioner , taking note of the pay drawn by him in the post of W.P.(C).No.10450/17 7 Duplicator Operator. Orders in this regard shall be passed within a period of two months from the date of receipt of a copy of this judgment. The arrears shall be calculated and disbursed to the petitioner within a period of two months thereafter. The writ petition is ordered accordingly. Sd/- **Anu Sivaraman, Judge** sj20/12/17