Kerala High Court

P.Harikumar vs Travancore Devaswom Board on 11 March, 2022

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR.JUSTICE V.G.ARUN
 FRIDAY, THE 11TH DAY OF MARCH 2022 / 20TH PHALGUNA, 1943
                     WP(C) NO. 27070 OF 2021
PETITIONER/S:

             P.HARIKUMAR
             AGED 59 YEARS
             S/O. PRABHAKARAN NAIR, NALUPARA KRISHNA NIVAS,
             PKAKKAZHAM, AMBALAPUZHA, ALAPPUZHA 688 005
             BY ADV D.AJITHKUMAR

RESPONDENT/S:

     1       TRAVANCORE DEVASWOM BOARD
             DEVASWOM BOARD HEAD QUARTERS, NATHANCODE,
             KAWDIAR POST, THIRUVANANTHAPURAM 695 003
             REPRESENTED BY ITS SECRETARY
     2       SECRETARY
             TRAVANCORE DEVASWOM BOARD, DEVASWOM BOARD HEAD
             QUARTERS, NATHANCODE, KAWDIAR POST,
             THIRUVANANTHAPURAM 695 003
     3       DEVASWOM COMMISSIONER
             TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD
             QUARTERS, NANTHENCODE, THIRUVANANTHAPURAM, PIN
             695 003
     4       DEPUTY DEVASWOM COMMISSIONER,
             PENSION AND SERVICE GRIEVANCE REDRESSAL CELL,
             TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD
             QUARTERS, NANTHENCODE, THIRUVANANTHAPURAM, PIN
             695 003
     5       DEVASWOM ACCOUNTS OFFICER
             DEVASWOM ACCOUNT OFFICE, TRAVANCORE DEVASWOM
             BOARD, DEVASWOM HEAD QUARTERS, NANTHENCODE,
             THIRUVANANTHAPURAM, PIN 695 003
     6       DEPUTY DEVASWOM COMMISSIONER,
             ADMINISTRATION, TRAVANCORE DEVASWOM BOARD,
             DEVASWOM HEAD QUARTERS, NANTHENCODE,
             THIRUVANANTHAPURAM, PIN 695 003
             BY ADV SRI.C.K.PAVITHRAN, SC, TDB
         THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   11.03.2022,   THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P.(C) No.27070 of 2021

                                 -2-



                           JUDGMENT

Dated this the 11th day of March, 2022

The petitioner entered the service of the

Travancore Devaswom Board as part-time Kazhakom

on 15.03.1993. While continuing in service, he

was deputed as Departmental Nominee to work as

Kazhakom in various temples. The petitioner

raised a claim that the period he had worked as

Departmental Nominee should also be reckoned as

regular service for the purpose of computing his

service benefits. Though Ext.P2 order, the claim

was allowed, later the order was reversed by the

Board. In the meanwhile, the petitioner retired

from service on 30.06.2018. By Ext.P3 order, the

petitioner was paid his gratuity after deducting

an amount of Rs.2,71,965/-, alleged to be the

excess pay and allowances received by the

petitioner, pertaining to the period he had W.P.(C) No.27070 of 2021

worked as Departmental Nominee. Aggrieved by the

deduction, the petitioner approached the Devaswom

Ombudsman and obtained Ext.P7 order. Relevant

portion of the order reads as under;

"Liaison Officer-In-Charge is present.

2. In the above matter, the Board has passed an Order extending the benefit of treating the Karazhma service also for the purpose of pension, as in the case of Shri Sivadasa Wariar. But the Board by its Order dated 16.01.2019 also, canceled the Order passed by the Devaswom Commissioner in ROC No.3715/19/Mis C dated 24.3. 2012 with retrospective effect, that too in the case of the petitioner after his retirement while considering his review for pensionary benefits. There is no mistake or fraud committed by the employee in the matter of getting the service benefits. It was paid based on an Order passed by the Commissioner and all along he enjoyed the monetary benefits given to him, adjusted his affairs based on the income he received. In such circumstances, how the Board could recover the amount several years after the benefit was conferred on him, that too retrospectively after his retirement arises W.P.(C) No.27070 of 2021

for consideration, leave alone the legality of the Order passed by the Commissioner. As the above action of the Board appears, prima facie, not sustainable, I request the Board to place on record their stand in the matter before final Orders are passed.

The case is posted to 10.12.2020 at 10.30 AM."

2. In terms of the Ombudsman's observations

and the decision of the Honourable Apex Court in

State of Punjab v. Rafiqu Masih (White Washer)

[2015 (1) KLT 429 (SC)], the Devaswom Board

issued Ext.P8 order, holding that the excess

salary and allowances received by the petitioner

need not be recovered. Based on Ext.P8 decision,

the complaint filed by the petitioner was closed

by the Ombudsman.

3. The petitioner is aggrieved by the fact

that, despite Ext.P7 order of the Ombudsman and

Ext.P8 order of the Travancore Devaswom Board

itself, the balance amount of gratuity due to him

is being withheld. Learned Counsel for the W.P.(C) No.27070 of 2021

petitioner relied on the decision of the Supreme

Court in Rafiqu Masih and the Division Bench

decision of this Court in KSFE v. Unnikrishnan

Nair [2022 (1) KLT 807] to contend that the

gratuity of an employee is not liable to be

attached towards any liability or excess payment.

4. Learned Standing Counsel for the

respondent Board relied on Ext.R1(a) consent

letter dated 22.06.2019 issued by the petitioner

to contend that, having consciously consented for

recovery of excess amount if any paid, the

petitioner cannot turn around and challenge the

recovery effected from his DCRG. According to the

learned Counsel, if the petitioner is aggrieved

the Board's decision, his remedy is to approach

the civil court.

5. Indisputably, the Board had decided not

to recover the excess salary received by the

petitioner. Therefore, the short question is W.P.(C) No.27070 of 2021

whether, based on Ext.R1(a) undertaking, the

Board can seek to withhold his DCRG. In this

context, learned Standing Counsel for the Board

has relied on paragraph 11 of the decision in

High Court of Punjab and Haryana and others v.

Jagdev Singh [2016(14) SCC 267], extracted

herein;

"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."

A careful scrutiny of the facts of the above case

would show that, therein the officer to whom

payment was made in the first instance was

clearly put on notice that any payment found to

have been made in excess would be required to be

refunded and the officer had furnished an

undertaking while opting for the revised pay

scale. The facts of the case at hand is W.P.(C) No.27070 of 2021

entirety different, inasmuch as the petitioner

was never put on notice that the amounts paid

to him for the work he had done as Departmental

Nominee would be liable to be refunded. On the

other hand, by Ext.P2, the Board had initially

regularised the service for the aforementioned

period. Even though that order was later

revised, the Board had undertaken before the

Ombudsman that no recovery would be effected. In

such circumstances, the fact that the petitioner

had submitted a consent letter is of no

consequence. The effect of a consent letter as

against the provisions of the Gratuity Act was

considered by the Division Bench in Unnikrishnan

Nair, (supra), the relevant portion of which

reads as under;

"10. Section 14 makes the provisions of the Act effective, notwithstanding anything inconsistent with the provisions, in any enactment or any instrument or contract having effect by virtue of any enactment other than the Gratuity Act. The applicability of Payment of Gratuity Act with respect to an W.P.(C) No.27070 of 2021

establishment having its own service regulations containing a provision for withholding of gratuity had come up for consideration before the Honourable Supreme Court in Y.K.Singla v. Punjab National Bank [(2013) 3 SCC 472], the relevant portion of which is extracted hereunder:-

"20. .......A perusal of S.14 leaves no room for any doubt, that a superior status has been vested in the provisions of the Gratuity Act, vis - a - vis, any other enactment (including any other instrument or contract) inconsistent therewith. Therefore, insofar as the entitlement of an employee to gratuity is concerned, it is apparent that in cases where gratuity of an employee is not regulated under the provisions of the Gratuity Act, the legislature having vested superiority to the provisions of the Gratuity Act over all other provisions/enactments (including any instrument or contract having the force of law), the provisions of the Gratuity Act cannot be ignored. The term "instrument" and the phrase "instrument or contract having the force of law" shall most definitely be deemed to include the 1995 Regulations, which regulate the payment of gratuity to the appellant."

Hence, the fact that KSRTC has been exempted

from the provisions of the Gratuity Act or the

fact that the petitioner had given consent for

effecting recovery from DCRG would not, either

entitle the employer to withhold his DCRG or

enable the appellant to effect recovery."

The law on point being as above, I am unable to

subscribe to the contention that Ext.R1(a)

consent letter takes away the petitioner's right W.P.(C) No.27070 of 2021

to get the eligible gratuity due to him.

In the result, this writ petition is allowed.

The first respondent is directed to pay the

balance amount of gratuity due to the petitioner

within three months of receipt of a copy of this

judgment, failing which the amount of gratuity

will carry interest at the rate of 8% from the

first day of the next month of the petitioner's

retirement.

Sd/-

V.G.ARUN JUDGE Scl/ W.P.(C) No.27070 of 2021

APPENDIX OF WP(C) 27070/2021

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE MEMO DATED 15-03-1993 ISSUED BY THE RESPONDENT BOARD Exhibit P2 TRUE COPY OF THE ORDER AS PEER VIDE ROC NO. 3715/19/MIS DATED 24-03-2012 ISSUED BY 3RD RESPONDENT Exhibit P3 TRUE COPY OF THE ORDER DATED NIL AUGUST 2017 ISSUED BY 5TH RESPONDENT. Exhibit P4 TRUE COPY OF THE ORDER OF THE 5TH RESPONDENT DATED 27-08-2019 VIDE DA NO 3902/19/D1 GRANTING COMMUTED VALUE OF PENSION Exhibit P5 TRUE COPY OF THE OFFICE ORDER VIDE DA NO. 3902/19/D1 DATED 27-08-2019 ISSUED 5TH RESPONDENT DIRECTING IN MANAGER, DHANALEKSHMI BANK LTD, NANTHENCODE TO DISBURSE RS. 2,10,504/-/ Exhibit P6 TRUE COPY OF THE ORDER DATED 27-08-

2019 VIDE D.A NO. 3902/19/D1 ISSUED BY 5TH RESPONDENT SANCTIONING PAYMENT OF PENSION OF RS. 12,280/- PER MENSUM Exhibit P7 TRUE COPY OF THE ORDER PASSED BY THE HON'BLE OMBUDSMAN FOR TRAVANCORE AND COCHIN DEVASWOM BOARDS ON 16-10-2020 IN COMPLAINT NO 1 OF 2020 Exhibit P8 TRUE COPY OF THE ORDER OF THE TRAVANCORE DEVASWOM BOARD DATED 08-07-

Exhibit P9 TRUE COPY OF THE ORDER DATED 18-08-