Geetha.S vs State Of Kerala
2021 Latest Caselaw 16098 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
               THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                      &
                THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
         TUESDAY, THE 3RD DAY OF AUGUST 2021 / 12TH SRAVANA, 1943
                           OP(KAT) NO. 114 OF 2020
   AGAINST THE ORDER IN OA.NO.2197/2019 OF THE KERALA ADMINISTRATIVE
                   TRIBUNAL, THIRUVANANTHAPURAM BENCH
PETITIONER/APPLICANT:

            GEETHA S., AGED 56 YEARS,
            W/O.JAYASANKAR C U, RETIRED HEADMISTRESS GOVT HIGH SCHOOL,
            KARIPOOTHITTA, ARPOOKARA, KOTTAYAM-686008, RESIDING AT
            PRANAVAM, PULINCHUVADU, KUDAMALOOR, KOTTAYAMPIN-686017

            BY ADVS. M/S.V.JOHN MANI, S.JAYANT, VARGHESE SABU,
            MANJU ELSA ISAC


RESPONDENTS/RESPONDENTS:

     1      STATE OF KERALA, REPRESENTED BY SECRETARY GENERAL EDUCATION
            DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM, 695001

     2      DIRECTOR OF GENERAL EDUCATION,
            GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695001

     3      DEPUTY DIRECTOR OF EDUCATION KOTTAYAM,
            OFFICE OF DEPUTY DIRECTOR OF EDUCATION, VAYASARAKUNNU,
            KOTTAYAM- 686001

     4      ASSISTANT TREASURY OFFICER,
            SUB TREASURY, GANDHINAGAR, KOTTAYAM-686008

     5      ACCOUNTANT GENERAL,
            OFFICE OF ACCOUNTANT GENERAL, THIRUVANANTHAPURAM-695001

            SRI.B.UNNIKRISHNA KAIMAL, GOVT.PLEADER


     THIS OP(KERALA ADMINISTRATIVE TRIBUNAL) HAVING BEEN FINALLY HEARD
ON 03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(KAT) No. 114 of 2021

                                          2



              ALEXANDER THOMAS & A.BADHARUDEEN, JJ.
   -----------------------------------------------------------------------------
                          O.P.(KAT) No. 114 of 2021
[arising out of the impugned final order dated 4.2.2020 in O.A. No. 2197/2019
              on the file of the KAT, Thiruvananthapuram Bench]
 ------------------------------------------------------------------------------
                   Dated this the 3rd day of August, 2021

                                JUDGMENT

ALEXANDER THOMAS, J.

The prayers in the afore captioned Original Petition (KAT) filed

under Articles 226 & 227 of the Consitution of India are as follows [See

page 6 of the paper book of this OP(KAT)]:

"

      i.     To set aside Ext.P1 order.
      ii.    To direct the 3rd respondent to issue a NLC to the 4 th respondent and

further directing the 4th respondent to release to petitioner her DCRG with 12% interest from the date of retirement.

iii. To declare that Non-Liability Certificate is not required to be obtained from Headmistress, Govt. High School, Kudamaloor for the purpose of releasing DCRG to the petitioner.

iv. Pass such other orders as may be deemed fit, necessary and just in the peculiar facts and circumstances of this case. „

2. Heard Sri.John Mani, learned counsel appearing for the

petitioner in the O.P./applicant in the O.A. before the Tribunal and

Sri.B.Unnikrishna Kaimal, learned Government Pleader appearing for

all the respondents in the O.P./ respondents in the O.A. before the

Tribunal.

O.P.(KAT) No. 114 of 2021

3. The prayers in Ext.P-2 original application O.A. No.

2197/2019 filed by the petitioner herein before the KAT,

Thiruvananthapuram Bench, are as follows [See page 24 of the paper book

of this OP(KAT)]:

"

i. To direct the 3rd respondent to issue a Non Liability Certificate to the 4th respondent with immediate effect with respect to the disbursement of DCRG of applicant.

ii. An order directing the 4th respondent to disburse Death Cum Retirement Gratuity to applicant with immediate effect. iii. Direct the 4th respondent to pay DCRG amount along with 12% interest from the date of retirement of applicant to the date of payment.

iv. To award cost for this proceedings to the applicant.

v. Any other order or relief this Hon'ble Court may deem fit and proper.„

4. The applicant was initially working as High School Assistant

and was later promoted as Headmistress in Goverment School Service

and she had retired from service on 31.3.2019 while holding the post of

Headmistress of the Government School concerned. The main

complaint of the petitioner is regarding the non disbursement of DCRG,

eventhough pension and DCRG were authorized in her favour as per as

per Anx.A-1 Pension Payment Order (PPO) dated 13.5.2019 and Anx.A-

2 Gratuity Payment OderS (GPO) dated 3.5.2019 & 19.7.2019. It appears

that the full amount of DCRG authorized in favour of the applicant was

not disbursed to her on account of non issuance of Non-Liability O.P.(KAT) No. 114 of 2021

Certificate/Liability Certificate (NLC/LC) by the competent authority

concerned. It appears that while the original applicant was engaged in

census duty for the period from 12.4.2010 to 27.5.2010, she was granted

earned leave surrender for 24 days and later it appears that the

department had taken the stand that teachers like the original applicant

who were entrusted with census duty were eligible for leave surrender

for 8 days only, the applicant was directed to refund the alleged excess

amount of Rs.12,288/- as per Anx.A-9 letter dated 10.5.2019.

5. From the pleadings on record as well as from the findings of

the Tribunal at Ext.P-1 it is seen that the abovesaid objection was raised

initially on the basis of G.O.(MS) No.171/2010/GAD dated 30.4.2010

that earned leave surrender in such cases could have been given for

teachers engaged in census duty only for 8 days. Later, it appears that

the Government has issued Anx.A-8 letter dated 14.5.2013 ordering that

the operation of said G.O.(MS) dated 20.4.2013 shall be kept in

abeyance until further orders. From the stand taken by the respondents

in the O.A. it appears that the directions in Anx.A-8 dated 14.5.2013

(ordering to keep in abeyance the said G.O. dated 20.4.2013 until

further orders) have not been varied till date. Hence, the Tribunal held

in Ext.P-1 final order that therefore nothing stands in the way of O.P.(KAT) No. 114 of 2021

disbursal of full amount of DCRG, which would be subject to further

clarification to be vitiated by the Government. Accordingly, the Tribunal

disposed of the O.A. by directing respondents 2 & 3 in the O.A. to

ensure that the full amount of DCRG is disbursed to her on executing a

bond undertaking to indemnify against the future liabilities. It appears

that the applicant has executed the bond and has received the full

amount of DCRG on 30.11.2020 in pursuance of the verdict of the

Tribunal. The applicant has now filed the present O.P. contending that

the Tribunal should not have given liberty to the respondents in the

O.A. to finalize and recover the said liability of Rs.12,288/- by way of

future liabilities, etc.

6. After hearing both sides it appears that the abovesaid

alleged lialibility of excess drawal of earned leave surrender amount is

for the period from 12.4.2010 to 27.5.2010. For the first time, notice

alleging such liabilities has been issued to the applicant only as per

Anx.A-9, issued as late as on 10.5.2019, and that too after the retirement

of the applicant on 31.3.2019. Even now the respondents do not have

any case that the direction in Anx.A-8, has in any manner been varied.

In other words, the direction in Anx.A-8 ordering to keep in abeyance

the recovery in terms of G.O.(MS) dated 20.4.2013 is still in force. That O.P.(KAT) No. 114 of 2021

apart, the abovesaid alleged liability amounts are in relation to a period

which is almost 9 years prior to the retirement of the petitioner.

7. Rule 3C of Part III KSR provides as follows:

"

3C. Notwithstanding anything contained in these rules, recovery of excess payments made to an officer by mistake within a period of four years before his retirement and which are detected within a period of four years after retirement, subject to the condition that such deduction if made from his pension shall be effected only in monthly ihnstalments in whole rupees and that the amount of each instalment shall not exceed 10 per cent of the monthly pension admissible to him. „

8. A reading of Rule 3C of Part III KSR would make it clear

that it is mandated therein that notwithstanding anything contained in

the KSR, recovery of excess payments made to an officer by mistake

within a period of four years before his retirement and which are

detected within a period of four years after retirement, may be made

from his pension and other amounts due to him after retirement,

subject to the condition that such deduction if made from his pension

shall be effected only in monthly ihnstalments in whole rupees and that

the amount of each instalment shall not exceed 10 per cent of the

monthly pension admissible to him. etcHence, Rule 3C can be pressed

into service only if the excess payments made in mistake has occurred

within a period of 4 years before the retirement. In the instant case, the

excess mistaken payments are alleged to have been paid about 9 years O.P.(KAT) No. 114 of 2021

prior to the retirement of the original applicant.

9. Further, Subclause (ii) of Clause (b) of the proviso to the

operative portion of Rule 3 of Part III KSR would also stipulate that

department proceeding, if not instituted while the employee was in

service, whether before his retirement or during his re-employment,

shall not be in respect of any event which took place more than four

years before such institution. Of course, Note 2 & Note 3 to Rule 3 of

Part III KSR stipulates that though the word 'pension' used in the

operative portion of Rule 3 does not include DCRG, liabilities which can

be fixed against an employee or pensioner without resort to

departmental/judicial proceedings, could be recovered after due notice

within an outer time limit of 3 years from the date of retirement of the

pensioner.

10. True, that the said outer time limit of 3 years has not

expired in the instant case. But, it is also to be noted that the petitioner

was working as HSA at the time of alleged mistaken payments.

11. In the celebrated White Washer's case {State of Pun-

jab v. Rafiz Masih [(2015) 4 SCC 334]} , the Apex Court has held

in para 18 thereof as follows:

"18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have O.P.(KAT) No. 114 of 2021

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 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, eventhough 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 extent, as would far outweigh the equitable balance of the employer's right to recover."

12. In the subsequent decision of the Apex Court in High

Court of Haryana & Punjab v. Jagdev Singh [AIR 2016 SC

3523], it was held in para 9 as follows:

"9. The submission of the respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the State. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the respondent was clearly on notice of the fact that a future refixation or revision may warrant an adjustment of the excess payment, if any, made."

13. In para 10 of Jagdev Singh's case supra, the Apex Court

has extracted para 18 of White Washer's case, and thereafter it was

held in para 11 by the Apex Court in Jagdev Singh's case as follows: O.P.(KAT) No. 114 of 2021

"11. The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking."

14. The effect of the decision of the Apex Court in Jagdev

Singh's case on the judgment in White Washer's case supra, was

considered by the Division Bench of this Court in the case in

State of Kerala & Ors. v. Vinod Kumar C.R. [2020 (4) KLT

230], wherein it has been held in para 7 thereof as follows:

"" .......... .......... ......... On a reading of both Rafiq Masih and Jagdev Singh, it is difficult for us to accept the contention of the learned Government Pleader that Jagdev Singh is a complete departure from the principles laid down in Rafiq Masih. From a reading of paragraphs 10 and 11 of Jagdev Singh, it appears to us that the Supreme Court had only clarified that in the case of recovery from retired employees or employees who are due to retire within one year of the order of recovery, there would be no bar in ordering recovery, if the employee concerned had executed an undertaking agreeing to refund any excess payment. We cannot read Jagdev Singh as having laid down the proposition that in every case where there is an undertaking as aforesaid, recovery can be ordered from the employee concerned whatever be the point of time that such payment was made. We cannot overlook the fact that there is not even a suggestion in Jagdev Singh that in the event of there being an undertaking to refund excess pay, none of the situations envisaged as items (i) to (v) of Rafiq Masih can be pressed into service. "

15. It can thus be seen that the Apex Court has not interfered

with the directions contained in para 18 of White Washer's case

supra, regarding clauses 1, 3, 4, & 5 and the modification made in

Jagdev Singh's case supra is only in respect to clause 2 of the O.P.(KAT) No. 114 of 2021

direction in para 18 of White Washer's case supra. In other words,

the directions issued by the Apex Court in clauses 1, 3, 4, & 5 of para 18

of White Washer's case supra have to be adhered to. Clause 1 of para

18 of White Washer's case supra deals with impermissibility of recov-

ery from employees belonging to Classes III & IV (Group C & D service).

16. We are apprised that the post of HSA held by the petitioner

at the time when alleged excess payments were made, is a Class III post.

The amounts sought to be recovered are in relation to the periods which

have occurred about 9 years prior to the retirement of the petitioner.

Hence, we are of the view that, taking into consideration that the

amount is not very significant, and also the fact that even now, the

Government has not taken any decision as to whether or not the liabili-

ties are still be pursued with, and also taking into account the dictum

laid down in the White Washer's case supra, it may not be legally

right and proper to keep the issue hanging and to seek recovery of the

said amount of Rs.12,288/- in future. Accordingly, it is ordered that the

proposal for recovery of said alleged amount of Rs.12,288/- will stand

quashed and rescinded. Consequently, the bond executed by the

original applicant for payment of full amount of DCRG, on account of

abovesaid aspects, will also stand treated as cancelled. The directions O.P.(KAT) No. 114 of 2021

and orders of the Tribunal at Ext.P-1 will stand modified to the above-

said limited aspects.

With these observations and directions, the above Original

Petition (KAT) will stand disposed.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

A.BADHARUDEEN, JUDGE

MMG O.P.(KAT) No. 114 of 2021

APPENDIX OF OP(KAT).NO. 114/2020

PETITIONER'S EXHIBITS

EXHIBIT P1 A TRUE COPY OF THE ORDER DATED 04.02.2020 BY THE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM IN OA NO.2197/2019

EXHIBIT P2 A TRUE COPY OF THE OA 2197/2019 FILED BY THE PETITIONER BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

EXHIBIT P2(A1) A TRUE COPY OF PENSION PAYMENT FOR ORDER ISSUED BY OFFICE OF PRINCIPAL ACCOUNTING GENERAL( A AND E KERALA) DATED 03.05.2019

EXHIBIT P2(A2) A TRUE COPY OF GRATUITY PAYMENT ORDER ISSUED BY ACCOUNTANT GENERAL AS NO.121941285 DATED 03.05.2019. A TRUE COPY OF GRATUITY PAYMENT ORDER ISSUED BY ACCOUNTANT GENERAL AS NO.121941285-1 DATED 19.07.2019

EXHIBIT P2(A2(A)) A TRUE COPY OF GRATUITY PAYMENT ORDER ISSUED BY ACCOUNTANT GENERAL AS NO.121941285-1 DATED 19.07.2019

EXHIBIT P2(A3) TRUE COPY OF ORDER NO.77/2011 ISSUED BY FINANCE DEPARTMENT DATED 02.11.2011

EXHIBIT P2(A4) TRUE COPY OF ORDER NO.P5/60600/2014/DPI ISSUED BY 2ND RESPONDENT DATED 07.01.2016

EXHIBIT P2(A5) TRUE COPY OF REPRESENTATION SUBMITTED BY APPLICATION TO THE 3RD RESPONDENT DATED 19.09.2019 O.P.(KAT) No. 114 of 2021

EXHIBIT P3 A TRUE COPY OF THE MISCELLANEOUS APPLICATION FILED BY THE PETITIONER FOR ACCEPTING ADDITIONAL DOCUMENTS TO EXT.P2 APPLICATION

EXHIBIT P3(A6) A TRUE COPY OF THE NON LIABILITY CERTIFICATE DATED 06.11.2019

EXHIBIT P3(A7) A TRUE COPY OF THE NON LIABILITY CERTIFICATE DATED 07.08.2019

EXHIBIT P4 A TRUE COPY OF THE REPLY FILED BY THE 3RD RESPONDENT TO EXT.P2

EXHIBIT P4(R3(A) TRUE COPY OF THE REPLY FROM THE APPLICANT SERVED TO HEADMISTRESS GOVT.HIGH SCHOOL KUDAMALOOR

EXHIBIT P5 A TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER TO EXT.P4

EXHIBIT P5(A8) A TRUE COPY OF THE ORDER GO NO.42076/G3/2010/GEN. EDN DATED 14.05.2013 ISSUED BY THE GENERAL EDUCATION DEPARTMENT OF KERALA GOVERNMENT

EXHIBIT P5(A9) A TRUE COPY OF THE LETTER SENT BY HEADMISTRESS KUDAMALOOR TO THE APPLICANT

EXHIBIT P5(A10) A TRUE COPY OF GO(P) NO.185/2002/FIN DATED 27.03.2002 ISSUED BY THE FINANCE-

PENSION(B) DEPARTMENT, STATE OF KERALA