Kerala High Court
Kerala Transport Development Finance ... vs C.S. Sreekumaran Nair on 9 July, 2025
2025:KER:49866
W.A.No.2430 of 2018 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TH
WEDNESDAY, THE 9
DAY OF JULY 2025 / 18TH ASHADHA,
1947
WA NO. 2430 OF 2018
AGAINST THE JUDGMENT DATED 02.02.2017 IN WP(C) NO.21811
OF 2011 OF HIGH COURT OF KERALA
APPELLANT/1ST RESPONDENT:
ERALA TRANSPORT DEVELOPMENT FINANCE K CORPORATION LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, REGISTERED OFFICE:6TH FLOOR, TRANS TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695014. Y ADVS. B SHRI.T.P.SAJAN, SC, KTDFC SHRI.DEEPU THANKAN, SC, KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LIMITED
- KTDFC ESPONDENTS/PETITIONER & 2ND R RESPONDENT:
1. C.S. SREEKUMARAN NAIR, S/O.SIVASANKARA PILLAI, SARADA VILASAM BUNGALOW, STUDIO ROAD, NEMOM, THIRUVANANTHAPURAM. RETIRED CHIEF MANAGER, KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LIMITED.
2. THE ACCOUNTANT GENERAL KERALA, OFFICE OF THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM - 695014. HIS T WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30.05.2025, THIS COURT ON 09.07.2025, DELIVERED THE FOLLOWING: 2025:KER:49866 W.A.No.2430 of 2018 2 JUDGMENT Sushrut Arvind Dharmadhikari, J. This appeal has been filed with a delay of 385 days. Having perused the reasons stated in the affidavit filed in support of the application to condonedelay,wearesatisfiedthatsufficientcausehas been made out to condone the delay.Hence,C.MAppln.No.2of2018 to condone the delay is allowed. 2. The present intra court appeal under Section 5 of the Kerala HighCourtAct,1958,assailsthejudgmentdated02.02.2017passedin W.P(C)No.21811 of 2011, whereby the learned Single Judge has allowed the writ petition and quashed the impugnedorderofrecovery. The appellant herein is the 1st respondent in the writ petition, the 1st respondent is the writ petitioner, and the 2nd respondent remains the same as in the writ petition. 3. The brief facts of the case are that the 1st respondent was originally anemployeeoftheKeralaStateRoadTransportCorporation (KSRTC) and at the time of constitution of the appellant - Kerala Transport Development Finance Corporation Ltd., many of the employees of the KSRTC were sent on deputation to the appellant - Corporation. As per the proceedings of the KSRTC dated 28.11.1997 2025:KER:49866 W.A.No.2430 of 2018 3 the1strespondentwassentondeputationasSeniorGradeClerkinthe appellant - Corporation. The 1st respondent continued on deputation upto 2003. Vide Ext.P2 Government Order dated 19.09.2003 the 1st respondent along withthreeotheremployees,whowereondeputation with the appellant, were absorbed permanently. It was also orderedin Ext.P2 that their salary will be fixed after deducting pension amount from the last salary drawn before absorption. As per the said Government Order, those Government employees who have been permitted to be absorbed in the public sector undertaking shall be deemed to have retired from the Government service fromthedateof suchabsorptionandthepaywillbefixeddeductingthepensionamount payable to the employees. It is on the basis of the said Government Orderthatthefixationofpaydeductingthepensionamountpayableto the 1st respondent from the KSRTC is fixed. 4. As per the Government order dated 02.06.1986 Government had notified the following conditions: "3(b). Those whoretirevoluntarilyaheadofthe ate of superannuation and who are absorbed in the d quasi Government Institutions will be allowed to receive the full salary under the institution but, their pensionary benefits from the Governmentwillbekept in abeyance until the end of their service in the institution." 2025:KER:49866 W.A.No.2430 of 2018 4 5. The appellant without noticing this Government Order dated 02.06.1986,insteadoffixingthepayinthenewpayscale,pensionwas deducted from the basis pay last drawn in the KSRTC and this continued from 2003 onwards. On 25.11.2008, the audit party of the appellant raised an objection regarding wrong fixation of pay and the allegedconsequentexcesspaymentofsalarytothe1strespondent.In the audit objection it is stated that while fixing the initial pay after absorption of the 1st respondent, there has been defect in fixation of the basicpayandasaresultanexcesspaymentofRs.2,59,188/-was made to the 1st respondent. On this basis Ext.P8 notice dated 28.11.2008 was issued to the 1st respondent directing refund of the aforesaidamount.Beingaggrieved,1strespondenthadchallengedthe recovery order in the writ petition. The writpetitionwasfinallydecided on 02.02.2017,whereinthelearnedSingleJudgeallowedthesameby quashing the impugned recovery order. Being aggrieved the 1st respondent in the writ petition had filed this appeal. 6. The learned counsel for the appellant contended that the recovery order was passed pursuant to an audit objection raised on account of excess payment made to the 1st respondent. The learned Single Judge, however, failed to appreciate the fact that the 1st 2025:KER:49866 W.A.No.2430 of 2018 5 respondent had received excess payment for which he is not entitled. Even otherwise the order impugned is not sustainable in the eyes of law. 7. Even though service has not been completed on respondent No.1, no prejudice will be caused to him by the judgment which we intend to pass. 8. Heard the learned counsel for the appellant and perused the records. 9.Onperusaloftheimpugnedjudgment,andconsideringthefact that the recoveryproposalwasissuedagainstthe1strespondentafter hisretirement,i.e.,on31.10.2008,norecoverycouldhavebeenmade. The Apex Court in the case of State ofPunjabandothersvs.Rafiq Masih (White Washer) etc. reported in 2015 (1) MPHT130(SC)has held as under : " It is not possible to postulate all situations of hardships where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employeeswhoaredueto retire within one year of the order of recovery. (iii) Recovery from employees, whentheexcesspaymenthasbeen made for a period in excess of five years, before the order of recovery is issued. 2025:KER:49866 W.A.No.2430 of 2018 6 ( 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 haverightfullybeenrequiredto work against an inferior post. (v)Inanyothercase,wheretheCourtarrivesattheconclusion,that recoveryifmadefromtheemployee,wouldbeiniquitousorharshor arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover." 10. Upon perusal of the aforesaid judgment, Clauses (i) and (ii) are found to be applicable to the facts of the present case. 11. It is an admitted fact that the 1st respondent did not misrepresent his case before the authorities nor had undertaken to refund theamountatanypointoftimewithregardtorecoverytowards wrong pay fixation. As such no recovery is permissible. 12.Inviewoftheaforesaid,weareoftheconsideredopinionthat thelearnedSingleJudgehasnotcommittedanyerroronthefaceofthe record so as to interfere with the judgement impugned. Consequently,thewritappealbeingbereftofmeritandsubstance is hereby dismissed. No order as to costs. Sd/- SUSHRUT ARVIND DHARMADHIKARI JUDGE Sd/- SYAM KUMAR V.M. JUDGE MC/7.7