The Deputy Director of Education, Civil Station, Palakkad-678001; The Director of Public Instructions, Office of the Director of Public Instructions, Government of Kerala, Jagathy, Thiruvananthapuram-695001; State of Kerala, represented by the Secretary to Government, General Education Department, Secretariat, Thiruvananthapuram-695001 v. P. Sreedharan

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 6[TH] DAY OF JANUARY 2022 / 16TH POUSHA, 1943 ``` # **`WP(C) NO. 298 OF 2022`** ## **`PETITIONERS:`** ``` 1THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, PALAKKAD-678 001. ``` ``` 2THE DIRECTOR OF PUBLIC INSTRUCTIONS, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, GOVERNMENT OF KERALA, JAGATHY, THIRUVANANTHAPURAM-695 001. ``` ``` 3STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. ``` ``` BY SR. GOVERNMENT PLEADER SRI.K.P.HARISH ``` ## **`RESPONDENT:`** ``` P.SREEDHARAN, S/O. GOVINDAN NAIR (LATE), SREESADAN, KERALASSERI, PALAKKAD-678 641. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C)No.298 of 2022** **2** ## **JUDGMENT** Dated this the 6[th] day of January, 2022 ## **S.Manikumar, C.J.** Respondent/complainant retired from service on 30.06.2001 from the post of Headmaster. Pursuant to the Pay Revision Orders, his pay was refixed as Rs.8,475/-. Consequently, a sum of Rs.78,957/-, withdrawn in excess, was sought to be recovered on 25.09.2004 from the Death-CumRetirement Gratuity. Being aggrieved, respondent preferred Complaint No.1042 of 2017 before the Kerala Lok Ayukta. 2. After adverting to the rival submissions, vide order dated 3.9.2017 in Complaint No.1042 of 2017, Kerala Lok Ayukta ordered as under: “7. A perusal of the communications would go to show that the claim of the complainant for releasing the amount recovered from him was turned down based on Ext.P5 order dated 16.7.2014. Ext.P5 was issued more than 13 years after the retirement of the Complainant. Ext.P5 is only an executive order. It cannot have any retrospective operation in order to take away the right vested with the persons like the complainant as per Ext.P1 order issued by the Government of Kerala. Therefore, the reasoning in the said orders for rejecting the claim of the complainant cannot stand in the eye of law. **W.P.(C)No.298 of 2022** **3** 8. One more thing also has to be adverted here. Ext.P9 statement of pay fixation in respect of the complainant was made by the District Educational Officer, Palakkad after issuing Ext.P5 order dated 16.7.2014. The pay of the complainant has been fixed properly in Ext.P9. But, applying Ext.P5, the benefit already accrued to the complainant on the strength of Ext.P1 was taken away. This cannot be permitted. In that view of the matter, the complainant is entitled to succeed in this complaint. 9. For the foregoing reasons, we declare that the pay of the complainant fixed at Rs.9,600/- as on 1.7.2000 as per Ext.P1 was properly done and the complainant is entitled to all benefits on that basis (The said pay fixation order is also produced along with Ext.P1 in this complaint). We also declare that the recovery of Rs.78,957/- effected by the respondents was illegal and hence, the Complainant is entitled to receive the said amount of Rs.78,957/with interest from the respondents. We are of the view that a simple interest at the rate of 7% per annum will be reasonable in the facts and circumstances of the case. Therefore, the the complainant will be entitled to receive the amount of Rs.78,957/ with simple interest at the rate of 7% per annum from 25.9.2004 till the date of actual payment of the said amount to the Complainant. 10. For the reasons stated in this report, we are satisfied that the action of the respondents in recovering Rs.78,957/ (Rupees seventy eight thousand nine hundred fifty seven) from the complainant has resulted in injustice and undue hardship to the complainant. Therefore, by this report, we recommend to the competent authority viz., the Secretary to Government, General Education Department, Government of Kerala, Secretariat, Thiruvananthapuram, that such injustice and hardship shall be remedied or redressed by way of taking appropriate action for releasing the amount of Rs.78,957/- recovered from the Complainant with simple interest at the rate of 7% per annum from 25.9.2004 till the date of actual **W.P.(C)No.298 of 2022** **4** payment to the complainant, within three months from the date of receipt of a copy of this report. 11. The competent authority shall furnish an action report in this Forum within one month of the expiry of the period of 3 months allowed for remedying or redressing the grievance of the Complainant. Post on 15.7.2020.” Being aggrieved, instant writ petition is filed. 3. Though the impugned order is assailed on several grounds, we are not inclined to interfere with the same for the reason that respondent/complainant retired from service on 30.06.2001. Admitted position is that recovery has been made on 25.09.2004, ie., after retirement. Perusal of the material on record also does not indicate that before recovery, respondent was given any opportunity to explain fixation of pay. 4. As per ruling No.3 of rule 3 of Part III of the Kerala Service Rules, before recovery is made, a Government servant has to be served with a notice. For brevity, ruling No.3 is extracted: “RULING No. 3 The Note 2 above does not mean that the employee's or **W.P.(C)No.298 of 2022** **5** pensioner’s consent should be obtained for recovering the liabilities from the death-cum-retirement gratuity payable to him. What is contemplated is only a communication of such liabilities to him so as to enable him to submit his explanation the recovery is effected. It should be specifically stated in the communication that if no reply is received within 30 days of its issue, it will be presumed that the employee or pensioner has no explanation to offer and that further action will be taken on that basis.” 5. Apart from the above, in case of excess fixation of pay, the Hon’ble Supreme Court in **State of Punjab & Others v. Rafiq Masih (White Washer)** reported in 2014 (8) SCC 883, held that recovery should not be made after one year. Paragraph No.12 of the judgment in **Rafiq Masih** ’s case, relevant for the instant writ petition, is reproduced: “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: (i) Recovery from employees belonging to Class-III and **W.P.(C)No.298 of 2022** **6** 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.” 6. In the light of the statutory provision stated supra, the order of recovery is also liable to be set aside for failure to provide reasonable opportunity to the respondent. Decision stated supra also squarely applies to the facts of this case. 7. Though Mr.K.P.Harish, learned Senior Government Pleader for the appellant, assailed the correctness of the impugned order on the grounds of jurisdiction, on the facts **7** ## **W.P.(C)No.298 of 2022** and circumstances of this case, we are not inclined to delve into that aspect. In the light of the above discussion, we find no merit in the writ petition, warranting interference. Writ petition is, therefore, dismissed. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** ## **vpv** **8** ## **W.P.(C)No.298 of 2022** ## **`APPENDIX OF WP(C) 298/2022`** ``` PETITIONER EXHIBITS Exhibit P1COPY OF THE COMPLAINT NO. 1042/2017 BEFORE THE LOK AYUKTA. Exhibit P2ORDER OF THE LOK AYUKTA DATED 30/09/2019. ``` //true copy// P.A. to Judge