N.Vijayan vs Kerala State Road Transport ...
2022 Latest Caselaw 6839 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
                       WP(C) NO. 20292 OF 2020
PETITIONER:

          N.VIJAYAN, (DRIVER, KSRTC, KATTAKADA DEPOT, RETIRED ON
          31/5/2017), RESIDING AT VIJAY BHAVAN, CHEMPOORU,
          OTTASEKHARAMANGALAM P.O., THIRUVANANTHAPURAM,
          PIN - 695 125.

          BY ADV K.P.RAJEEVAN



RESPONDENTS:

    1     KERALA STATE ROAD TRANSPORT CORPORATION
          REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN,
          FORT, THIRUVANANTHAPURAM, PIN - 695 023.

    2     ASSISTANT TRANSPORT OFFICER
          KERALA STATE ROAD TRANSPORT CORPORATION, KATTAKADA
          DEPOT, KATTAKADA, THIRUVANANTHAPURAM, PIN - 695 572.

    3     PERSONAL OFFICER
          PAY REVISION CELL, KERALA STATE ROAD TRANSPORT
          CORPORATION, TRANSPORT BHAVAN, FORT,
          THIRUVANANTHAPURAM, PIN - 695 023.

          BY ADV SRI.DEEPU THANKAN, SC


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 20292 OF 2020
                                     2


                                 JUDGMENT

While the petitioner was working as a driver in the

services of Kerala State Road Transport Corporation (KSRTC),

he was favoured with certain modification in the structure of

his increments. He, thereafter, retired on attaining the age of

superannuation, on 31.05.2017. However, while his

pensionary benefits were disbursed, an amount of Rs.66,143/-

was withheld on the allegation that the modification to the

increment structure offered to him earlier was an error and

therefore, that he is liable to refund the same.

2. The petitioner asserts that this action of the KSRTC is

egregiously improper and blatantly in violation of the

declarations of law made by the Hon'ble Supreme Court in

State of Punjab & others v. Rafiq Masih (White Washer)

& others [(2015) 4 SCC 334]. The petitioner thus prays that

the KSRTC be directed to refund the amount of Rs.66,143/-

withheld from his pensionary benefits, within a time frame to

be fixed by this Court.

3. The afore submissions of Sri.K.P.Rajeevan - learned

counsel for the petitioner, were answered by Sri.Deepu

Thankan - learned standing counsel for the KSRTC, saying WP(C) NO. 20292 OF 2020

that the petitioner cannot assail the recovery made against

him because the amounts in question was illegally enjoyed by

him in the past. He, however, conceded that no undertaking

had been obtained from the petitioner at the time when such

benefits were given to him, so as to bring it within the

exemptions as enumerated by the Hon'ble Supreme Court in

Rafiq Masih (supra); but argued that even without this,

recovery could be effected.

4. I must say that I cannot find favour with the afore

submissions of Sri.Deepu Thankan because, the Hon'ble

Supreme Court is very clear in its view that unless an

employee had agreed to refund the fixation or such other

benefits granted to him while he was in service, it cannot be

recovered subsequently from his DCRG or pensionary

benefits. This is more so in the case of persons who were

employed in the lower category of services and who have

since retired.

5. There is nothing on record to show that the petitioner

had given any undertaking at the time when the benefits

would become due and obviously therefore, Rafiq Masih

(supra) would cover the case against KSRTC, particularly

because they do not even whisperingly allege that the said WP(C) NO. 20292 OF 2020

benefits had been obtained by the petitioner on account of

any error or fraud that can be attributed to them.

In the afore circumstances, I allow this writ petition and

direct the KSRTC to refund an amount of Rs.66,143/- to the

petitioner within a period of four months from the date of

receipt of a copy of this judgment, failing which, it will carry

interest at the rate of 6% p.a. from the date on which it was

recovered, until it is actually paid.

Sd/- DEVAN RAMACHANDRAN JUDGE stu WP(C) NO. 20292 OF 2020

APPENDIX OF WP(C) 20292/2020

PETITIONER EXHIBITS

EXHIBIT P1 A TRUE COPY OF THE 1ST, 3RD AND 5TH PAGES OF THE PENSION PAYMENT ORDER OF THE PETITIONER.

EXHIBIT P2 A TRUE COPY OF THE GRATUITY PAYMENT ORDER NO.IAI/P7/010522/18 DATED 29/06/2018.

EXHIBIT P3 A TRUE COPY OF THE HISTORY AND VERIFICATION OF SERVICE ENTERED IN PAGE 47 OF THE SERVICE BOOK OF THE PETITIONER.

EXHIBIT P4 A TRUE COPY OF THE SALARY SLIP OF THE PETITIONER FOR THE MONTH OF MAY 2017 ISSUED BY THE 2ND RESPONDENT.