Kerala High Court
Joseph Augustine vs State Of Kerala on 8 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
THURSDAY, THE 8TH DAY OF JULY 2021 / 17TH ASHADHA, 1943
WP(C) NO. 9060 OF 2020
PETITIONER:
JOSEPH AUGUSTINE,
KUNNAMKOTT HOUSE, NEDIYASALA P.O.,
THODUPUZHA - 685 584.
BY ADVS.
A.JAYASANKAR
SRI.MANU GOVIND
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT, HIGHER EDUCATION
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001.
2 THE DIRECTOR OF COLLEGIATE EDUCATION,
VIKAS BHAVAN P.O., THIRUVANANTHAPURAM - 695 035.
3 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,
ERNAKULAM 682 011.
4 THE PRINCIPAL,
NEWMAN COLLEGE, THODUPUZHA - 685 585.
5 ACCOUNTANT GENERAL (A & E),
KERALA, THIRUVANANTHAPURAM - 695 039.
6 SUB TREASURY OFFICER,
THODUPUZHA - 685 585.
BY ADVS.
SRI.MATHEW B. KURIAN
SRI.K.T.THOMAS
GP SRI B HARISH KUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.07.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 9060 OF 2020
2
JUDGMENT
Challenge has been laid to the orders Exts.P12, P13 and P14
dated 29.01.2016, 14.12.2018 and 20.01.2020 respectively
whereby demand has been raised for recovering the amount ie.,
the allowances paid to the petitioner when he was on deputation
under the chapter Faculty Improvement Programme. The facts
leading to the aforementioned writ petition are that petitioner
joined in St.Dominic College, Kanjirappilly, an aided private
college on 16.09.1982 as Junior Lecturer in History and
transferred to the College ie., the 4th respondent while working as
Selection Grade Lecturer on 31.03.2010.
2. While in service he underwent deputation under
Faculty Improvement Programme (FIP) from 01.08.1994 to
31.07.1995 and was paid salary for the said period but
unfortunately was not able to complete the Ph.D programme. As
per the Rules petitioner was expected to return the salary and
allowances for the period he availed deputation under the
aforementioned scheme FIP.
3. On attaining the age of retirement petitioner
addressed communication dated 25.06.2010 (Ext.P2) to Director
WP(C) NO. 9060 OF 2020
of Collegiate Education - respondent No.2 and expressed his
willingness to refund the amount for deduction from outstanding
gratuity. Vide Ext.P3 Principal of the college communicated to the
Director of Collegiate the exact amount of the liability which the
petitioner had incurred i.e.,an amount of Rs.91387/- details of
which is also enclosed and attached as Ext.P3(2). Thereafter
numerous requests were sent but the respondent No.2 instead of
acceding to the request, had been communicating with the
Principal for ascertaining the figure i.e., liability of petitioner.
4. Sri.Jayasankar, learned counsel appearing on behalf of
the petitioner submitted, that once the college had already
apportioned the liability there was no need for respondent No.2
to unnecessarily communicate with the Principal and delay the
disbursement of the retiral benefit after the adjustment of
amount due. There is no communication of the exact demand
raised by the respondent No.2 along with the interest for the
same though for the first time vide the communication dated
17.03.2015 Ext.R2(a) substantial amount is sought to be
recovered along with 18% interest. The ratio culled out by
Division Bench judgment of this Court, relied by the respondents
WP(C) NO. 9060 OF 2020
ie., Premasukumar v. Secretary, Higher Education
Department [2019 (3) KLT 912] would not be applicable as the
petitioner cannot be burdened with the payment of the interest
as request was submitted long ago but no action was taken. Even
now the receipt, emphatically, relied qua the service of the
demand Ext.R2(a) is also of 17.3.2015 meaning thereby that the
demand was kept in the office of the respondent No.2 for a period
of three years and allegedly communicated to the petitioner only
in 2018. In such circumstances the Government cannot be unduly
enriched by demanding the interest at the rate of 18%.
5. On the other hand, the learned Government Pleader
opposed the aforementioned prayer and submitted that it is a
matter of record that the petitioner did not complete the Ph.D by
not submitting the thesis during the period of deputation, as per
the provisions of the Rules applicable, the amount and salary
received by any incumbent who have not undergone the FIT is
required to be returned, i.e., as per the import of the judgment
referred above. Even in cited judgment also the demand was
raised along with 18% interest, thus urged this Court for
dismissal of the writ petition.
WP(C) NO. 9060 OF 2020
6. I have heard the learned counsel for the parties and
appraised the paper book.
7. This Court while exercising the power of judicial review
under Article 226 of the Constitution of India though has to
examine the veracity of the order as well as strike equities
between the parties. No doubt an employee who has been on
deputation and received the lump-sum wages but failed to
complete the thesis is required to return the amount along with
the interest but the fact of the matter is the period as referred to
above, during the period the petitioner remained on deputation
could not submit the thesis and retired five years thereafter ie.,
on 31.03.2010 and immediately vide Ext.P2 ie., a communication
dated 25.06.2010, acknowledged to pay the amount outstanding
and whatever the interest thereon. The College immediately
communicated to the 2nd respondent the outstanding amount
along with the interest thereof. Contents of letter Ext.P3 is
extracted herein below:
With reference to your letter cited above, I am to inform
you that Sri.Joseph Augustine, Sel. Gr. Lecturer in History
Department of this college had undergone deputation under
FIP from 1/08/1994 to 31/7/1995. But he had not
completed his ph.D programme. He has incurred a liability
WP(C) NO. 9060 OF 2020
of Rs.91387/- towards the government. Detailed statement
also is enclosed herewith. He was retired from service on
31.3.2010.
8. Thereafter vide Ext.P4 onwards the respondent No.2 has,
for the reason best known had been communicating for
determining the amount which was already communicated as
indicated above and ultimately raised the demand in 2018 vide
Ext.P13, on the basis of the decision dated 17.03.2015 (R2(a)).
This Court would not go to the realm of disputed question of fact
with regard to the receipt of the communication Ext.R2(a) dated
17.03.2015 whereby the demand has been raised along with the
interest @ 18%. Assuming for an argument, do not admit that
the demand was communicated, the acknowledgement thereof
reveals that the said demand was communicated only after three
years ie., in the month of December, 2018 as evident from
Ext.R2(b). This Court has been prevented from any explanation
as to how and in what manner respondent No.2 withheld the
order of 17.03.2015 for a period of three years. Acknowledgment
Ext.R2(b) correlates the issuance of impugned decision dated
14.12.2018 (Ext.P13). The balance in this case would not tilt in
WP(C) NO. 9060 OF 2020
favour of the respondents in justifying the demand of interest for
the period the petitioner remained on deputation. At the best he
is entitled to pay admissible/permissible interest for the period
from 01.08.1994 to 31.07.1995 but no demand till his date of
retirement was made and on retirement had volunteered, for the
sake of repetition, to pay back.
9. No doubt this Court in cited judgment had in respect of a
matter where a Selection Grade Lecturer had also undertaken a
Faculty Improvement Programme on 01.06.2005 to 31.03.2007
but did not acquire Ph.D within the stipulated period or extended
time and much after the retirement from the service on
31.03.2010, proceedings were initiated for recovery of Rs.3,70,
590/- and the liability was fixed. However, the entire judgment do
not reveal that when the proceedings of recovery were initiated
and amount assessed. On the contrary in the instant case, it is
evident that respondent No.2 from 2011 onwards till 2014 have
unnecessarily been communicating with the respondent No.2 for
asserting the determination of the amount which was already
concluded. In such circumstances, I do not justify the demand of
interest @ 18%.
WP(C) NO. 9060 OF 2020
Accordingly, the impugned order is quashed to the extent
of demand of interest @ of 18%. Respondents are directed to
release the retiral benefits after deducting the amount of
Rs.91,000/- an odd amount as reflected in Ext.P3. This writ
petition is allowed with the aforementioned direction.
Sd/-
AMIT RAWAL
JUDGE
nak
WP(C) NO. 9060 OF 2020
APPENDIX OF WP(C) 9060/2020
PETITIONER ANNEXURE
EXHIBIT P1 TRUE COPY OF THE ORDER DATED 11/06/2010
ISSUED BY THE 5TH RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED
25/06/2010 SUBMITTED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE REPLY DATED 15/10/2011
ALONG WITH THE ANNEXURE SENT BY THE 4TH
RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE LETTER FROM THE 3RD
RESPONDENT TO THE 2ND RESPONDENT DATED
24/12/2011.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED
15/10/2012 PREFERRED BY THE PETITIONER
TO THE 2ND RESPONDENT.
EXHIBIT P6 COPY OF THE LETTER DATED 14/11/2012
PREFERRED BY THE 2ND RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE LETTER
NO.PR2101051249/P-3/3/1513189473 DATED
26/04/2013 FROM THE 5TH RESPONDENT
ALONG WITH ITS RETYPED COPY.
EXHIBIT P8 TRUE COPY OF THE LETTER DATED
14/05/2013 PREFERRED BY THE 2ND
RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE LETTER DATED
03/03/2014 PREFERRED BY THE 2ND
RESPONDENT.
EXHIBIT P10 TRUE COPY THE LETTER DATED 18/06/2014
PREFERRED BY THE 2ND RESPONDENT.
WP(C) NO. 9060 OF 2020
EXHIBIT P11 TRUE COPY THE LETTER DATED 14/08/2014
PREFERRED BY THE 2ND RESPONDENT.
EXHIBIT P12 TRUE COPY OF THE LETTER DATED
29/01/2016 FROM THE OFFICE OF THE 2ND
RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE NOTICE DATED
14/12/2018 ISSUED TO THE PETITIONER.
EXHIBIT P14 TRUE COPY OF THE NOTICE DATED
20/01/2020 FROM THE OFFICE OF THE 6TH
RESPONDENT.
RESPONDENTS ANNEXURE
EXHIBIT R2(A) TRUE COPY OF LETTER DATED 17.03.2015
ALONG WITH LETTER DATED 10.04.2015
EXHIBIT R2(B) TRUE COPY OF RELEVANT PAGE OF DISPATCH
REGISTER TO SHOW THT EXHIBIT R2(A)
