High Court of KeralaSingle JudgeThe impugned orders are set aside; petitions al...
W.P.(C).Nos.28192 & 30644 of 2014
Case / Petition Number:W.P.(C).Nos.28192 & 30644 of 2014
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- Anu Sivaraman
- Judgment Date
- 2017-04-07
- Court Decision / Holding
- Writ petitions allowed; impugned government orders directing recovery of the amounts paid to petitioners are set aside; the petitioners are not liable to repay the excess sums paid under the employer’s orders.
- Final Disposition
- The impugned orders are set aside; petitions allowed; recoveries directed by the government are quashed.
Parties to the Case
Appellants / Petitioners
- Thomas P.V.
- K. Raveendran
- N. Gopinathan Nair
- G. Sasidharan Nair
- P. Subramanian
- S. Rajendran
- P.N. Mohandas
Respondents
- State of Kerala represented by the Secretary, Finance Department, Thiruvananthapuram
- Principal Secretary to Government, Forest and Wildlife Department, Thiruvananthapuram
- Kerala Forest Development Corporation Ltd, Aranyakom, Karapuzha, Kottayam (represented by its Managing Director)
- The Managing Director, KFDC, Aranyakom, Karapuzha, Kottayam
Legal Representation & Advocates
Counsels for Petitioners
- • Sri.Thampan Thomas
- • Sri.B.V. Joy Sankar
- • Sri. Shaffie Thomas
- • Smt. Jancy Alex
- • Sri. Saneesh Kunjukunju
- • Sri. Jacob Chacko
Counsels for Respondents
- • Sri. Bijoy Chandran
- • Sri. V.G. Arun
- • Sri. T.R. Harikumar
Case Synopsis & Summary
These writ petitions concern the recovery by the Government of Kerala of amounts paid to employees of the Kerala Forest Development Corporation (KFDC) based on orders issued by the employer board. The petitioners—seven KFDC employees who had initially been engaged on ad hoc/temporary terms—were extended benefits such as annual increments, dearness allowances, and leave, with arrears paid on the basis of KFDC orders. Despite the corporation’s request for regularisation, government regularisation did not occur until 2011 for the petitioners. Subsequently, following an inspection by the Finance Inspection Wing which concluded that the petitioners had received benefits prior to the date of regularisation, the Government issued recovery orders for the excess amounts paid from 2000 onwards. By the time recovery became an issue, most petitioners had retired, and all petitioners had retired by the time the writ petitions were heard. The petitioners contend that the payments were made in reliance on the employer’s orders, without fraud or misrepresentation, and that public funds ought not to be recovered from retirees who benefited from such orders. They rely on Supreme Court rulings including Rafiq Masih to argue against recovery. The State contends that excess payments were unauthorized and must be recovered to rectify financial misallocations. The court ultimately holds that, on the basis of authorities cited, the amounts paid cannot be recovered and sets aside the impugned recovery orders, allowing the petitions.
Legal Doctrines & Maxims
- Rafiq Masih (White Washer) doctrine on recovery of excess pay
- Principle that amounts paid under employer orders may not be recovered where there is no fraud or misrepresentation
Submissions & Arguments
Contentions of Appellants / Petitioners
The petitioners submit that their pay benefits were granted by the 3rd respondent in reliance on its orders; subsequent government orders directing recovery are erroneous, especially since payments spanned from 2000 onwards and many petitioners had already retired. Relying on decisions of the Supreme Court (notably Rafiq Masih) and Kerala authorities, they contend that if benefits were disbursed under the employer’s authority and without fraud, recovery from long-retired, low-paid employees should_not be permitted.
Contentions of Respondents
The respondents contend that excess payments were unauthorized and that recovery is necessary to correct financial misallocations and prevent misuse of public funds. Arguing that the benefits were extended on the basis of orders issued by KFDC and that the state must recover inappropriate payments, the respondents rely on audit findings and government directions directing recovery.
Cited Precedents (3)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| State of Punjab and others v. Rafiq Masih (White Washer) etc | (2015) 4 SCC 334 | Positive | The court relies on this decision to support the position that amounts paid under employer orders to employees, where no fraud is involved, should not be recovered. |
| Syed Abdul Qadir and others v. State of Bihar and others | 2009 KHC 4219 | Mentioned Only | Cited by the petitioners, but not central to the final ruling; not relied upon as the decisive basis for the judgment. |
| State of Punjab and Ors. v. Jagjit Singh and Ors | AIR SC 5176 | Mentioned Only | Cited in argument but not the decisive basis for the decision. |
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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 MRS. JUSTICE ANU SIVARAMAN**
**FRIDAY, THE 7TH DAY OF APRIL 2017/17TH CHAITHRA, 1939**
**WP(C).No. 28192 of 2014 (Y) ----------------------------**
## **PETITIONER(S):**
## **-------------**
- **1. THOMAS P.V,AGED 57 YEARS,(CORRECTED)**
- **S/O.THOMAS VARGHESE, PEON, KFDC, KOTTAYAM RESIDING AT PALATHINKKAL, KUMBANADU P.O. CHANGANASSERY.**
**2. K.RAVEENDRAN,AGED 57 YEARS, S/O.KUNJU PANIKAR, PEON, KFDC PUNALOOR, THOLIKODU P.O RESIDING AT LIJI BHAVAN, KARAVOOR P.O., PIRAVANTHUR, KOLLAM.**
**3. N.GOPINATHAN NAIR,AGED 58 YEARS, S/O.NARAYANA PILLAI, PEON - KFDC TRIVANDRUM, RESIDING AT V.G.BHAVAN, VIZHINJAM STREET, VIZHINJAM P.O., TRIVANDRUM.**
**4. G.SASIDHARAN NAIR, AGED 56 YEARS, S/O.GOPALAN NAIR, PEON - KFDC PUNALOOR, THOLIKODU P.O RESIDING AT SARADA BHAVAN, MANNADY P.O PATHANAMTHITTA.**
- ***5. P.SUBRAMANIAN, AGED 50 YEARS, (CORRECTED) S/O.PARANGODAN, PEON - KFDC MANANTHAVADY, RESIDING AT PUPALETTA, MANALODI P.O., NILAMBUR.**
**6. S.RAJENDRAN, AGED 57 YEARS, S/O.SADASIVAN, DRIVER - KFDC TRIVANDRUM, RESIDING AT SUNIL BHAVAN, TC 9/832, SREEKARYAM, TRIVANDRUM.**
- ***7. P.N.MOHANAN, (CORRECTED)**
- **S/O.APPUKUTTAN NAIR, DRIVER - KFDC KOTTAYAM, RESIDING AT PATTOVATHIL HOUSE, MEDICAL COLLEGE P.O CALICUT.**
*** THE 1ST PETITIONER'S PLACE IS CORRECTED AS “KURUSUMOOD P.O” INSTEAD OF “KUMBANADU P.O” AND IN THE 5TH PETITIONER'S PLACE IS CORRECTED AS “POOPATTA” INSTEAD OF “PUPALETTA”. THE NAME OF 7TH PETITIONER IS CORRECTED AS “P.N.MOHANDAS” INSTEAD OF “P.N.MOHANAN”, VIDE ORDER DATED 7/4/2017 IN IA NO.763/2015.**
**BY ADVS.SRI.THAMPAN THOMAS SRI.B.V.JOY SANKER SRI.SHAFFIE THOMAS SMT.JANCY ALEX SRI.SANEESH KUNJUKUNJU SRI.JACOB CHACKO**
**-2-**
**-2-**
## **WPC 28192 OF 2014: -----------------**
## **RESPONDENT(S):**
**--------------**
**1. STATE OF KERALA REPRESENTED BY THE SECRETARY, FINANCE DEPARTMENT,**
**THIRUVANANTHAPURAM - 695 001.**
**2. PRINCIPAL SECRETARY TO GOVERNMENT, FOREST AND WILD LIFE DEPARTMENT, THIRUVANANTHAPURAM 695001.**
**3. KERALA FOREST DEVELOPMENT CORPORATION LTD, REGISTERED OFFICE AT ARANYAKOM, KARAPUZHA, KOTTAYAM - 686 003 REPRESENTED BY ITS MANAGING DIRECTOR.**
**4. THE MANAGING DIRECTOR, KERALA FOREST DEVELOPMENT CORPORATION LTD, ARANYAKOM, KARAPUZHA, KOTTAYAM - 686 003.**
- **R1&2 BY GOVERNMENT PLEADER SRI BIJOY CHANDRAN R3 & 4 BY ADVS. SRI.V.G.ARUN**
**SRI.T.R.HARIKUMAR**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-04-2017,ALONG WITH 30644/2014 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**K.V.**
## **WP(C).No. 28192 of 2014 (Y)**
## **----------------------------**
## **APPENDIX**
**PETITIONER(S)' EXHIBITS ----------------------EXT.P-1: TRUE COPY OF THE ORDER IMPLEMENTING REGULAR PAY SCALES TO THE 29 DAILY WAGES WORKERS OF THE KFDC CORPORATION VIDE OFFICE ORDER NO.E1-5/95 DT 26.12.1995. EXT.P-2: TRUE COPY OF THE ORDER FOR DISBURSEMENT OF ARREARS OF SALARY VIDES ORDER NO.306/83 DATED 18.3.1998 BY THE 4TH RESPONDENT EXT.P-3: TRUE COPY OF OFFICE ORDER NO.E1-306/83 DATED 29.5.1998 THE 4TH RESPONDENT TO THE DIVISIONAL MANAGER, KFDC PUNALUR. EXT.P-4: TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 29.10.1998 EXT.P-5: TRUE COPY OF THE RESOLUTION NO.903 OF THE BOARD OF DIRECTORS MEETING HELD ON 16.1.1999 EXT.P-6: TRUE COPY OF THE ORDER NO.E1-2442/83 DATED 11.3.1999 OF THE 4TH RESPONDENT EXT.P-7: TRUE COPY OF THE G.O(RT) NO.537/2000/F&WLD DATED 27.11.2000 EXT.P-8: TRUE COPY OF THE ORDER NO.E1-5288/2000 DATED 19.12.2000 EXT.P-9: TRUE COPY OF THE ORDER G.O(MS) NO.16/2011/F&WLD DATED 1.3.2011 EXT.P-10: TRUE COPY OF THE JUDGEMENT DATED 9.4.2014 IN WPC NO.9260 OF 2011 EXT.P-11: TRUE COPY OF THE REPORT SUBMITTED BY THE AUDIT WING OF IST RESPONDENT BEFORE THE GOVERNMENT WHICH IS FORWARDED TO THE 2ND RESPONDENT DATED 09.2014 EXT.P-11(A): TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.P-11 REPORT SUBMITTED BY THE AUDIT WING OF IST RESPONDENT BEFORE THE GOVERNMENT WHICH IS FORWARDED TO THE 2ND RESPONDENT DATED 24 09.2014 RESPONDENT(S)' EXHIBITS ----------------------R1(A) DECISION NO 860 OF THE 108 BOARD MEETING OF THE 3RD RESPONDENT HELD ON 14/10/1998. R3(A) COPY OF THE GOVERNMENT LETTER NO 19277/83/F & WLD DATED 18/12/1986. R3(C) COPY OF THE ORDER DATED 5/4/2011 IN WPC 10844/2011. -2-**
**-2-**
**WPC 28192 OF 2014.**
## **-----------------**
- **R3(D) COPY OF THE ORDER NO E1 5389/99 DATED 21/7/2011**
- **R3(E) COPY OF THE WRITTEN CONSENT GIVEN BY THE 1ST PETITIONER DATED 29/7/2011.**
- **R3(F) COPY OF THE WRITTEN CONSENT GIVEN BY THE 5TH PETITIONER DATED 29/7/2011.**
- **R3(G) COPY OF THE WRITTEN CONSENT GIVEN BY THE 7TH PETITIONER DATED 29/7/2011.**
- **R3(H) COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE 180TH BOARD MEETING OF KFDC HELD ON 28/10/2014.**
- **R3(I) COPY OF THE ORDER NO E1-515/2014 DATED 29/10/2014 ISSUED BY THE 4TH RESPONDENT.**
- **R3(I) COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO THE 1ST PETITIONER DATED 29/10/2014.**
- **R3(K) COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO THE 2ND PETITIONER DATED 29/10/2014.**
- **R3(L) COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO THE 3RD PETITIONER DATED 29/10/2014.**
- **R3(M) COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO THE 4TH RESPONDENT DATED 29/10/2014.**
- **R3(N) COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO THE 5TH PETITIONER DATED 29/10/2014.**
- **R3(O) COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO THE 6TH PETITIONER DATED 29/10/2014.**
- **R3(P) COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO THE 7TH PETITIONER DATED 29/10/2014.**
**/TRUE COPY/**
**P.A.TO JUDGE**
**K.V.**
## **ANU SIVARAMAN, J.**
**= = = = = = = = = = = = = = = = = = = = = W.P.(C).Nos.28192 & 30644 of 2014**
- **= = = = = = = = = = = = = = = = = = = = = = Dated this the 7[th] day of April, 2017**
## **JUDGMENT**
- 1.The issue raised in these writ petitions is with regard to the recovery of amounts drawn by the petitioners on the basis of orders issued by the employer Board.
- 2.Heard the learned counsel for the petitioners, the learned Senior Government Pleader and learned standing counsel appearing for the 3[rd] respondent Corporation.
- 3.It is submitted that the petitioners were initially appointed on ad hoc basis in the 3[rd] respondent Corporation. Though request had been made by the 3[rd] respondent for regularisation, orders for regularisation were not issued by the Government. The petitioners had continued as temporary employees. Orders were passed by the Corporation granting them the benefits of annual increments, dearness allowances as well as leave benefits as applicable to regular employees.
W.P.(C).Nos.28192 & 30644/14
2
Arrears of revision of pay was also disbursed to them on the basis of orders issued by the 3[rd] respondent. Long thereafter, an order was passed on 01.03.1997 regularising the petitioner's service.
- 4.It appears that on the basis of the complaint made by other employees, an inspection was made in the 3[rd] respondent Corporation by the Finance Inspection Wing and a report was submitted stating that the petitioners were granted benefits as available to regular employees much prior to the date of regularisation. On that basis, the Finance Inspection Wing recommended the recovery of excess amounts from the petitioners. Orders were thereafter passed by the Government directing recovery of all amounts allegedly paid in excess.
- 5.It is submitted that most of the petitioners had already retired from service when the order threatening recovery was issued. Thereafter, now all the petitioners have retired from service. It is clear from a reading of the impugned orders that the specific case of the Government was that the petitioners who
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## W.P.(C).Nos.28192 & 30644/14
were regularised in 2011 were not entitled to the benefits granted by the 3[rd] respondent from 2000 onwards. It is clear that the benefits had been availed by the petitioners only on the basis of orders issued by the 3[rd] respondent.
- 6.The learned counsel for the petitioner would place reliance on the decisions of the Apex Court reported in **State of Punjab and others v. Rafiq Masih (White Washer) etc** .[(2015) 4 SCC 334]; **Syed Abdul Qadir and others v. State of Bihar and others** .[2009 KHC 4219]; **State of Punjab and Ors. v. Jagjit Singh and Ors** [ AIR SC 5176] to contend that since the amounts were disbursed to the employees without any fraud or misrepresentation being committed by them and on the basis of orders of the employeer, it is not possible to recover the said amount from the employees.
- 7.The petitioners were last grade employees in the 3[rd] respondent Corporation. The ratio of the decision in **Rafiq Masih's case** (supra) therefore squarely applies to the petitioners who were low paid employees and who were either
4
## W.P.(C).Nos.28192 & 30644/14
retired employes or who were due to retire from the service when the steps for recovery were initiated. It is also clear that the amounts sought to be recovered are amounts paid from the year 2000 onwards.
8. In the above view of the matter, going by the decisions of the Apex Court, I am of the opinion that the amounts paid to the petitioners on the basis of orders of 3[rd] respondent cannot be recovered. The impugned orders are therefore set aside.
These writ petitions are ordered accordingly.
sd/- **Anu Sivaraman, Judge**
sj