High Court of KeralaSingle Judge2022-02-28The writ petition is allowed; relief granted as...

T.A. Thressia v. State of Kerala and others

Case / Petition Number:WP(C) No. 24170/2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Amit Rawal
Judgment Date: 2022-02-28
Court Decision / Holding: Writ Petition allowed. Ext.P8 (recovery order) quashed. Respondents directed to refund the amount recovered from the DCRG along with 6% interest and to grant consequential benefits upon withdrawal.
Final Disposition: The writ petition is allowed; relief granted as per court decision; Ext.P8 quashed; recovery refunded with interest; consequential benefits.

Parties to the Case

Appellants / Petitioners

T.A. Thressia w/o Ouseph, Tharayil House, Chovur P.O., Thrissur District

Respondents

State of Kerala represented by its Secretary, General Education Department, Government Secretariat, Thiruvananthapuram
Deputy Director of Education, Ayyanthol (Ayyanthole) P.O., Thrissur District
District Educational Officer Iringalakkuda, Thrissur District
Head Mistress Holy Cross Higher Secondary School, Mapranam, Madayikonam P.O., Thrissur District

Legal Representation & Advocates

Counsels for Petitioners

• N.L. Bitto
• K. Sudhinkumar

Counsels for Respondents

• Sri Joseph Sebastian Purayidam
• Sri Jimmy George
• Government Pleader

Case Synopsis & Summary

The petitioner, T.A. Thressia, a retired clerk of Holy Cross Higher Secondary School Mapranam, challenged the recovery of Rs. 3,26,885 from her DCRG following an audit objection and a later pay-scale correction. After 23 years of service, she was granted the pay scale of a higher grade in 2009, but in 2010 audit objections were raised, and Ext.P7 recorded that the objections were accepted, suggesting an incorrect fixation of pay. In 2015, Ext.P8 directed recovery of the excess payment from her retirement benefits and required refund of the recovered amount. The petitioner contends that an audit objection cannot justify recovery, and that the order Ext.P8 conflicts with Rule 4 of Chapter XXIV(B) of the Kerala Education Rules as well as the Supreme Court’s decision in State of Punjab and others v. Rafiq Masih (White Washer) and others, which delineates when recoveries would be impermissible, especially for retirees. She asserts there was no misrepresentation or mens rea, and that she was compelled to consent to recovery due to financial need; Ext.P10 (an Office Memorandum) has not been complied with. Respondents argue that Ext.P7 validates the corrected fixation and that Ext.P8 was properly issued. The court, applying Rafiq Masih’s ratio, holds that audit objections cannot sustain recovery from a retired employee if it would be unjust or harsh, and accordingly quashes Ext.P8 and orders refund with 6% interest and consequential benefits.

Provisions of Law Cited

Rule 4 of Chapter XXIV(B) of the Kerala Education Rules

Legal Doctrines & Maxims

Recovery from Class-III and Class-IV service (Group C and D) is impermissible
Recovery from retired employees or those due to retire within one year is impermissible
Recovery for excess payment spanning more than five years before the recovery order is impermissible
Recovery where the employee held a higher post’s duties wrongly and was paid accordingly is impermissible
In any other case, recovery would be iniquitous, harsh or arbitrary to far outweigh the employer's right to recover
Ratio decidendi of Rafiq Masih (White Washer) that recovery must be balanced against hardship to the employee

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the alleged objection by the audit is not a lawful basis for recovering a sum already paid as part of a higher grade salary. Ext.P7 conceded the earlier objections; Ext.P8 order retried the recovery from the DCRG long after the objection was closed. The petitioner asserts that the Kerala Education Rules Rule 4 of Chapter XXIV(B) and the Supreme Court’s decision in State of Punjab and others v. Rafiq Masih prohibits recovery from retired employees or in other circumstances where recovery would be unjust or harsh. The petitioner asserts there was no misrepresentation or mens rea, and she was compelled to consent to recovery due to financial constraints, but Ext.P10 has not been complied with. Therefore Ext.P8 is unlawful; a writ of mandamus should compel refund with interest and consequential benefits.

Contentions of Respondents

The respondents submit that the earlier audit objections and Ext.P7 order fix the retirement pay correctly and that the recovery order Ext.P8 was properly issued; a direct reading of the pay revision orders was not misinterpreted. They argue that the remedy sought would undermine the State’s right to recover erroneous payments and would bypass the Kerala Education Rules and policy pronouncements.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Punjab and others v. Rafiq Masih (White Washer) and others	[(2015) 4 SCC 334]	Positive	Extends the principle that recoveries from employees, especially retirees, must be balanced against hardship and may be impermissible in cases where recovery would be harsh or unjust.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **MONDAY, THE 28[TH] DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943** ## **WP(C) NO. 24170 OF 2016** ## **PETITIONERS:** T.A.THRESSIA W/O.OUSEPH, THARAYIL HOUSE,CHOVUR P.O., THRISSUR DISTRICT,PIN - 680027. BY ADVS. N.L.BITTO K.SUDHINKUMAR ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001. 2 DEPUTY DIRECTOR OF EDUCATION AYYANTHOLE P.O., THRISSUR DISTRICT,PIN- 680003. 3 THE DISTRICT EDUCATIONAL OFFICER IRINGALAKKUDA,THRISSUR DISTRICT, PIN - 680121. 4 HEAD MISTRESS HOLY CROSS HIGHER SECONDARY SCHOOL,MAPRANAM, MADAYIKONAM P.O.,THRISSUR DISTRICT, PIN 680 712. BY ADVS. SRI.JOSEPH SEBASTIAN PURAYIDAM SRI.JIMMY GEORGE, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No.24170/2016 2 ## **JUDGMENT** The petitioner is a retired clerk (4[th] Higher Grade) from the Holy Cross Higher secondary School, Mapranam, Madayikonam P.O. on 31.5.2015. After having rendered 23 years of service, the pay scale of the Junior Superintendent was allowed to the petitioner with effect from 12.5.2009 as per Ext.P3 proceedings. 2. Learned counsel for the petitioner submits as per the audit conducted by the Deputy Director of Education - second respondent, an objection was raised with regard to the pay scale of the petitioner which was seriously objected to particularly with regard to the exemption from sitting in the Departmental Tests. The objections were closed as per Ext.P7 proceedings dated 4.5.2010. The retirement proceedings of the petitioner was again objected that the petitioner was not entitled the pay scale in the post of Upper Divisional Clerk, Head Clerk and Junior Superintendent as per WP(C) No.24170/2016 3 Ext.P8 proceedings dated 20.10.2015 and was directed to refund the salary. It is further contended that the said recovery is against Rule 4 of Chapter XXIV(B) of the Kerala Education Rules and as per the judgment of Honourable Supreme Court in _**State of Punjab and others v. Rafiq Masih (White Washer) and others**_ [(2015) 4 SCC 334]. Though the petitioner was compelled to give the consent for recovery of the amount of Rs.3,26,885/-from her DCRG, but is entitled to refund the same in view of the aforementioned judgment. Even as per the judgment of the Supreme Court, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, Government of India issued an office memorandum Ext.P10 dated 2.3.2016. Despite that there has not been any adherence to the request of the petitioner for refunding the amount. 3. Sri.Jimmy George, learned counsel appearing on behalf of the respondent, supported the aforementioned submission and therefore, urge this Court for issuing writ in WP(C) No.24170/2016 4 the nature of mandamus directing the respondents to quash Ext.P8 and do not deny the fact that earlier the objections were accepted vide order dated 4.5.2010 Ext.P7, as fixation of pay of the petitioner was incorrect. The order of pay revision was not read in correct perspective. In addition there was no direct promotional post of UDC or Head Clerk. Thus the clerks of aided school sectors were eligible only for a time bound higher grade promotion mentioned in the respective pay revision orders. 4. I have heard the counsel for the parties and appraised the paper book. 5. I am of the view that the case of the petitioner is one that purely falls within the parameters of the ratio decidendi culled out by the Supreme Court in _**Rafiq Masih**_ (supra), which reads as under : _“12. 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:_ WP(C) No.24170/2016 5 _(i) Recovery from employees belonging to Class-III and ClassIV 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.”_ 6. Audit objection cannot be a ground for recovery of the amount though the petitioner was constrained to give the consent for recovery as he was in a need of money. The ratio decidendi extracted above had brought a succor where recovery had been made from the salary of persons for no fault of theirs. There was no misrepresentation or mens rea on behalf of the petitioner in claiming the relief even if she was not entitled to. The person who is retired cannot be burdened to pay such amount based upon the audit objection, particularly when the matter on this point had already been WP(C) No.24170/2016 6 closed as evidenced from Ext.P7 dated 5.4.2010 which has not been denied in the counter. Resultantly this Writ Petition is allowed. The impugned order Ext.P8 dated 20.10.2015 is quashed. Respondents are directed to refund the amount DCRG recovered along with the interest @ 6% and also entitled to all consequential benefits if withdrawn. **Sd/AMIT RAWAL JUDGE** csl WP(C) No.24170/2016 7 ## **APPENDIX OF WP(C) 24170/2016** PETITIONER'S EXHIBITS EXHIBIT-P1: TRUE COPY OF THE APPOINTMENT ORDER DATED 14/07/1986. EXHIBIT-P2: TRUE COPY OF THE PROCEEDINGS DATED 22/06/2007 OF THE 2ND RESPONDENT. - EXHIBIT-P3: TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT GRANTING HIGHER GRADE TO THE PETITIONER WITH EFFECT FROM 12/05/2009. - EXHIBIT-P4: TRUE COPY OF THE NOTICE DATED 19.11.2009 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT. - EXHIBIT-P5: TRUE COPY OF THE GOVERNMENT ORDER DATED 18/01/2010. - EXHIBIT-P6: TRUE COPY OF THE REPLY TO THE EXT.P4 OBJECTION SUBMITTED BY THE 4TH RESPONDENT BEFORE 2ND RESPONDENT. - EXHIBIT-P7: TRUE COPY OF THE ORDER DATED 05/04/2010 ISSUED BY THE 2ND RESPONDENT. - EXHIBIT-P8: TRUE COPY OF THE ORDER DATED 20/10/2015 ISSUED BY THE 2ND RESPONDENT. - EXHIBIT-P9: TRUE COPY OF THE GOVERNMENT ORDER DATED 21/12/2002. - EXHIBIT-P10: TRUE COPY OF THE OFFICE MEMORANDUM DATED 02/03/2016 OF THE MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, DEPARTMENT OF PERSONNEL AND TRAINING, GOVERNMENT OF INDIA. WP(C) No.24170/2016 8 RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF THE GOVERNMENT LETTER NO.73543/N2/J2/G.EDN. DATED 23.1.2013 EXT.R1(b) TRUE COPY OF THE GOVERNMENT LETTER NO.88917/PRC A3/11 FIN DATED 28.12.2011 EXT.R1(c) TRUE COPY OF GOVERNMENT LETTER NO.60048/PRCA3/14 FIN. DATED 27.9.2014 EXT.R1(d) TRUE COPY OF OBJECTIONS EXT.R1(e) TRUE COPY OF ORDER NO.PR2101665714/P10/4/1016313072 DATED 29.9.2016