V.P. Rajagopalan and P.D. Raphael v. State of Kerala and Matsyafed

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 31ST DAY OF JANUARY 2018 / 11TH MAGHA, 1939** **WP(C).No. 4998 of 2004** **-----------------------** **PETITIONER(S) --------------** - **1 V.P. RAJAGOPALAN, S/O. LATE C.G. MENON, AGED 56, SENIOR ASSISTANT, MATYSA FED, DISTRICT OFFICE, THRISSUR.** - **2 P.D. RAPHAEL, AGED 53 YEARS, ICE MAN, MATSYA FED, DISTRICT OFFICE, THRISSUR.** **BY ADV.SRI.GEORGE CHERIAN (THIRUVALLA).** - **RESPONDENT(S): -------------** **1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT SECRETARIAT, TRIVANDRUM.** **2. THE KERALA STATE CO-OPERATIVE FEDERATION FOR FISHERIES DEVELOPMENT LTD., (MATSYA FED), TRIVANDRUM, REPRESENTED BY ITS MANAGING DIRECTOR.** **R1 BY SR. GOVT. PLEADER SRI.B. VINOD. R2 BY SRI.SHYAM KRISHNAN, SC. SRI.T.P.PRADEEP, SC.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-01-2018, ALONG WITH W.P.(C)NO.2944 OF 2003 AND W.P.(C)NO.3414 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** **WP(C).No. 4998 of 2004** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1 COPY OF THE ORDER DATED 12/04/1991 BY FIRST RESPONDENT. EXT.P2 COPY OF THE ORDER DATED 08/11/1995 BY FIRST RESPONDENT.** - **EXT.P3 COPY OF THE ORDER DATED 24/04/1997 ISSUED BY THE SECOND RESPONDENT.** - **EXT.P4 COPY OF THE ORDER DATED 29/04/1997 ISSUED BY SECOND RESPONDENT.** - **EXT.P5 COPY OF THE CIRCULAR DATED 15/04/1998 ISSUED BY 2ND RESPONDENT.** - **EXT.P6 COPY OF THE GOVERNMENT ORDER DATED 18/06/2001.** - **EXT.P7 COPY OF THE LETTER DATED 04/09/2001 OF ACCOUNTANT GENERAL, KERLA.** - **EXT.P8 COPY OF THE LETTER DATED 18/10/1997 BY DISTRICT OFFICER TO GENERAL MANAGER, MATSYAFED.** - **EXT.P9 COPY OF THE JUDGMENT DATED 17/12/2002 IN OP.NO.34098/2002.** - **EXT.P10 COPY OF THE ORDER DATED 04/03/2003 ISSUED BY FIRST RESPONDENT.** - **EXT.P11 COPY OF THE ORDER DATED 11/08/2003 ISSUED BY THE FIRST RESPONDENT.** - **EXT.P12 COPY OF THE ORDER DTED 04/09/2003 ISSUED BY 2ND RESPONDENT.** **RESPONDENT'S EXHIBITS: NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** ## **A.M. SHAFFIQUE, J.** ............................................................ W.P. (C ) No. 4998 of 2004 - T, O.P. No. 3414/2003 & O.P. No. 2944of 2003 .............................................................. Dated : 26 - 02 - 2015 ## **JUDGMENT** Petitioners in the above cases are persons who were originally employed in Kerala Fisheries Corporation, a Government of Kerala Undertaking, which was later absorbed by Matsyafed. The persons who were working in Kerala Fisheries Corporation were given option to continue in the Fisheries Department or the State Co-operative Federation for Fisheries Development Ltd. (Matsyafed), as the case may be. Though the petitioners opted to continue in the Fisheries Department, in the absence of sufficient vacancies, petitioners were forced to remain in Matsyafed. During the course of employment, petitioners W.P. (C ) No. 4998 of 2004 - T, O.P. No. 3414/2003 & O.P. No. 2944of 2003 2 were given revision of pay scale and time bound higher grade based on different Government Orders which were approved by the resolutions passed by the Matsyafed as well. However, ultimately, by a Government Order dated 4-3-2003, (Ext. P10 in W.P.C. No. 4998/2004), Government passed the following Order:- ## GOVERNMENT OF KERALA ## Abstract “Fisheries-Establishment – Time Bound Higher Grade Promotion to the Erstwhile employees of the defunct Kerala Fisheries Corporation, Kerala Fishermen Welfare Corporation and Kerala Inland Fisheries Development Corporation absorbed in Matsyafed – Sanctioned – Orders issued:- ___________________________________________________________________ ## FISHERIES & PORTS (A) DEPARTMENT G.O. (MS) No. 11/03/F&PD Dated, Thiruvananthapuram 4-3-2003 ______________________________________________________________ Read:- 1. G.O. (MS) 18/01/F&PD dated 18-6-2001 2. Letter No. Mfed/E1/3173/01/dated 11-12-2001 from the Managing Director, Matsyafed. ## O R D E R The Managing Director, Matsyafed vide her letter read as 2[nd] paper above has reported that the majority of employees of defunct Kerala Fisheries Corporation, Kerala Fishermen Welfare Corporation W.P. (C ) No. 4998 of 2004 - T, O.P. No. 3414/2003 & O.P. No. 2944of 2003 3 and Kerala Inland Fisheries Development Corporation were absorbed in the Matsyafed and they were not allowed the benefit of grade promotion which was extended to the employees of the said Corporations absorbed in the Fisheries Department, as per Government Order read as first paper above. She has recommended that the grade promotions sanctioned to the employees of erstwhile Corporations under Liquidation absorbed in the Fisheries Department may be extended to those employees absorbed in the Matsyafed also. Government have examined the matter in detail and are pleased to accord sanction extending the benefit enjoyed by the employees of the Fisheries Corporation, Kerala Fishermen Welfare Corporation and Kerala Inland Fisheries Development Corporation, absorbed in the Fisheries Department as per the Govt. Order read as Ist paper above, to the employees absorbed in the Matsyafed also, subject to the condition that the benefit will be with effect from the date of this order. By order of the Governor, K.K.Vijayakumar, Principal Secretary to Govt. To, The Director of Fisheries, Thiruvananthapuram The Managing Director, Matsyafed, Thiruvananthapuram The Accountant General (A & E Audit) this issues with the concurrence of Finance Department The Finance Department (Vide U.O. No.103125/PUc3/02/Fin dated 14-2-2003. Stock file/office copy Forwarded/By order Sd/-Section Officer” 2. Even before the aforesaid Government Order, steps 4 W.P. (C ) No. 4998 of 2004 - T, O.P. No. 3414/2003 & O.P. No. 2944of 2003 were also taken to recover the excess amount paid to the petitioners by virtue of an order dated 8-01-2003 which is produced as Ext. P15 in O.P.No. 2944 of 2003. Petitioners impugn the aforesaid orders passed by the Government as well as Matsyafed. 3. The factual issues involved in the above Writ Petitions are not in dispute and no counter affidavit has been filed by the respondents so far. The petitioners, who were originally appointed as L.D. Clerk and Peon in the Fisheries Department, were later absorbed in Matsyafed and depending upon the pay revision that had come into force on account of the 5th Pay Revision Commission as well as the other directions issued by the Government, the same were adopted by the Matsyafed and appropriate revision in pay scale has been granted to the petitioners from time to time. Payments were also effected. The petitioners were also given time bound higher grade scale in 5 W.P. (C ) No. 4998 of 2004 - T, O.P. No. 3414/2003 & O.P. No. 2944of 2003 accordance with the Government Orders as well as the decision taken by the Matsyafed from time to time. However, by Ext. P10 order, the Government restricted the monetary benefits from the date of the said order i.e. from 4-3-2003. Petitioners challenge Ext. P10, inter alia, contending that it is absolutely discriminatory and no specific reasons had been stated to restrict the monetary benefits from 4-3-2003. 4. Ext. P15 is challenged, inter alia, contending that the petitioners are not the disbursing officers and they have not committed any fraud or misrepresentation in the matter. Revision of pay scale and fixation of pay has been done by the Department which had been received by the petitioners and, therefore, it is not open for the Department to seek refund of the amount allegedly drawn by them. 5. Having regard to these factual issues, the first question is to be considered is the validity of Ext. P10. A perusal of the W.P. (C ) No. 4998 of 2004 - T, O.P. No. 3414/2003 & O.P. No. 2944of 2003 6 materials placed on record and after hearing the learned counsel for the petitioners it is clear that over a period of time there had been revision in the pay scale and the time bound higher grade had been granted to the petitioners which apparently is not in dispute. Under what circumstances the Government ordered that the benefits cannot be granted to the petitioners prior to 4-3-2003, is not borne out from Ext. P10. Nothing has been stated in Ext. P10 to restrict the right of the employees to receive the benefits only from 4-3-2003. Hence, it is clear that the said decision is arbitrary and is liable to be set aside. 6. In regard to Ext. P15, it is not open for the Department to recover any amount from the petitioners since they had received the said amount by virtue of the orders issued by the disbursing officer. It is stated that Ext. P15 has been issued by the Department based on some audit objection. It is trite law that if an employee has been paid excess salary over and above what he 7 W.P. (C ) No. 4998 of 2004 - T, O.P. No. 3414/2003 & O.P. No. 2944of 2003 is actually entitled, the same can be recovered. But the fact remains that there is no material to indicate that the petitioners had voluntarily drawn any excess salary. 7. A perusal of Ext. P15 indicates that the Senior Concurrent Auditor, Matsyafed District Office, Thrissur, during the course of audit has detected grave irregularities in the fixation of pay in respect of the petitioners and on a detailed examination of the service books and pay fixation statement, it is noticed that the observation in the audit was true to facts as the fixation of pay of these two employees at the time of time bound higher grade was in the scale of pay of regular higher scales of the promotion posts which was not at all admissible. As rightly argued by the learned Senior counsel appearing on behalf of the petitioners, the petitioners were not involved in fixation of pay and even though any mistake has occurred, in so far as, there is no fraud, malpractice or misrepresentation on the part of the 8 W.P. (C ) No. 4998 of 2004 - T, O.P. No. 3414/2003 & O.P. No. 2944of 2003 petitioners, it was not proper on the part of the Department to seek recovery of any amount as directed in Ext.P15. Probably, if there is a wrongful pay fixation, definitely pay and allowances can be correctly fixed but it can have application only from the date of such re-fixation. If any amount is paid on the allegation of wrongful fixation, it cannot be recovered from the salary. 8. Relying upon the judgments in Paras Nath Singh v. State of Bihar (2009) 2 SCC (Supp) 198, Syed Abdul Qadir v. State of Bihar (2009) 3 SCC 375 and other judgments of the Apex Court, I have already taken a view in W.P. ( C ) No. 6842/2004 that the direction to recover after a long lapse of time is not permissible especially when there is no fraud or misrepresentation on the part of an employee in receiving the amount. Under such circumstances, I am of the view that the direction to recover any amount from the petitioners is liable to be set aside. In the result, these Writ petitions are allowed as follows: W.P. (C ) No. 4998 of 2004 - T, O.P. No. 3414/2003 & O.P. No. 2944of 2003 9 - i) Ext.P10 in W.P.C. No. 4998/2004 shall stand set aside to the extent it imposes the condition that the benefit will be payable to the petitioners with effect from the date of the said order. - ii) Ext.P15 in O.P. No. 2944/03, to the extent that it seeks to recover the amount already paid to the petitioners, shall also stand set aside. **Sd/- A.M. SHAFFIQUE** **(Judge)** ani/ /true copy/ ## P.S. to Judge W.P. (C ) No. 4998 of 2004 - T, O.P. No. 3414/2003 & O.P. No. 2944of 2003 10