P.Thilakam vs State Of Kerala
2023 Latest Caselaw 334 Ker

  W.P(C) 660/2014             1



          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
          THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
  WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
                    WP(C) NO. 660 OF 2014
PETITIONER:

           P.THILAKAM
           CONFIDENTIAL ASSISTANT, SENIOR GRADE,
           JUDICIAL FIRST CLASS MAGISTRATE'S COURT-I,
           KOCHI-682 005 (RETIRED)
           NOW RESIDING AT "SANTHI", NELSON MANDELA ROAD
           PALLURUTHI, COCHIN-6.

           BY ADVS.
           SRI.K.JAJU BABU (SR.)
           SRI.BRIJESH MOHAN
           SMT.M.U.VIJAYALAKSHMI

RESPONDENTS:

   1       STATE OF KERALA
           REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY
           AND SECRETARY TO HOME DEPARTMENT,
           GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM-695 001.

   2       THE HIGH COURT OF KERALA
           REPRESENTED BY THE REGISTRAR(SUBORDINATE
           JUDICIARY) ERNAKULAM, COCHIN-682 031.

   3       THE DISTRICT JUDGE, ERNAKULAM
           REPRESENTED BY ITS SHERISTADAR, COCHIN-682 011

   4       THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE
           (ECONOMIC OFFENCES), ERNAKULAM-682 015
           REPRESENTED BY ITS SHERISTADAR.

           BY ADVS.
           SRI. JOBY JOSEPH, SR. GOVERNMENT PLEADER-R1
           SRI. V.A.MUHAMMED-R2

     THIS WRIT PETITION (CIVIL) HAVING COME UP              FOR
ADMISSION ON 11.01.2023, THE COURT ON THE SAME              DAY
DELIVERED THE FOLLOWING:
    W.P(C) 660/2014                  2


                           JUDGMENT

Dated this the 11th day of January, 2023

This writ petition is filed by the petitioner, a Confidential

Assistant (Senior Grade), Judicial First Class Magistrate Court-I,

Kochi, challenging Exhibits P14, P16, P19 and P20

communications/orders seeking recovery of amounts paid to the

petitioners towards salary in the Higher Grade, enjoyed by her

during her tenure of service. At the outset, it is made clear that

the petitioner retired from service on 31.10.2013.

2. Brief facts for the disposal of the writ petition are as

follows:

Petitioner joined as Confidential Assistant Grade-II and got

promotion as Confidential Assistant Grade-I with effect from

3.7.1992 as per Exhibit P1 order. Later, petitioner was made

Senior Grade Confidential Assistant with effect from 1.1.1999 as

per Exhibit P4 and P5 orders. While working as Confidential

Assistant (Grade I), petitioner was given a transfer on request

from Chenganur to Ernakulam as per Exhibit P2 order dated

22.11.2000. She was relieved from there on 13.12.2000 and

joined duty at Ernakulam on 14.12.2000.

3. According to the petitioner, while she was given a

reversion, others including juniors were treated only as junior

most in the district on inter district transfer. Anyhow, later,

petitioner was given time bound Higher Grade on completion of

18 and 23 years of service as per order dated 17.2.2006 and

3.8.2007; and promotion as Confidential Assistant Grade-I and

Senior Grade on 1.3.2004 and 1.4.2010 respectively, evident from

Exhibits P8 and P11.

4. According to the petitioner, later as per Exhibits P12 and

P14, the District Judge, Ernakulam as well as Additional Chief

Judicial Magistrate (Economic Offences), Ernakulam

(respondents 3 and 4) based on an audit objection, took the view

that on account of inter district transfer, petitioner lost her

entire seniority and pay fixation benefits already enjoyed.

5. Even though petitioner submitted Exhibit P15

representation based on Exhibit P17 judgment in W.P(C).

No.4798 of 2006 dated 21.6.2012, her request was turned down

by Exhibit P19 order. According to the petitioner, the impugned

orders are illegal and unsustainable mainly for three reasons-(1)

there cannot be any loss of seniority on inter district transfers

when seniority is state vise; (2) Even when there is inter district

transfer and loss of seniority, petitioner is entitled to retain her

position as Senior Grade Confidential Assistant, when she may

became the senior most in Ernakulam District; and (3) there is no

justification for denying the protection of seniority to her given

to Smt. Padmakumari and Sri. Devarajan, who are admittedly her

juniors based on Exhibit P17 judgment. Therefore, according to

the petitioner, the impugned orders are illegal and arbitrary

liable to be interfered with by this Court.

6. The State Government has filed a detailed counter

affidavit justifying the stand adopted in the impugned orders.

Respondents 2 to 4 ie., High Court of Kerala and the District

Judge, Ernakulam and the Additional Chief Judicial Magistrate

have jointly filed a counter affidavit justifying the stand adopted

in the orders passed by the High Court of Kerala, impugned in

the writ petition.

7. I have heard Sri. Brijesh Mohan, learned counsel for the

petitioner, Sri. Joby Joseph, learned Senior Government Pleader

for State and Sri. V.A. Muhammed, learned counsel appearing for

the High Court of Kerala and others, perused the pleadings and

material on record.

8. The narration of facts made above would make it clear

that Grade promotion was granted to the petitioner by the High

Court of Kerala. There is no case for the High Court that grade

promotion was granted to the petitioner based on any

misrepresentation made by the petitioner. It is also clear from

the counter affidavit filed by the High Court that the Grade

Promotion granted to the petitioner was found to be wrong by

an Audit objection.

9. In fact, the question with respect to the recovery of

payment made to an employee after the retirement was

considered in innumerable judgments by the Hon'ble Apex Court

and Division Bench of this Court also, especially taking into

account the undertaking given by the employee that if grade

promotion granted is found to be wrong, the payment effected

shall be repaid. Anyhow, this question was recently considered

by the Hon'ble Apex Court in the Judgment in Thomas Daniel v.

State of Kerala and Others [2022 KHC 6489 = 2022 (3) KLT

307], taking into account the judgments rendered by the Apex

Court in Col. B. J. Akkkara (Retd.) v. Government of India and

Others [2006 KHC 1488]; Sahib Ram v. State of Haryana and

Others [(1995) Supp 1 SCC 18]; State of Punjab and Others v.

Rafiq Masih (White Washer) and Others [2014 KHC 4818]; and

Syed Abdul Quadir and Others v. State of Bihar and Others

[2009 KHC 4219]; and held as follows:

12. In Syed Abdul Qadir and Others v. State of Bihar and Others (2009 KHC 4219 : (2009) 3 SCC 475 : 2009 (1) SCALE 36 : 2009 (4) LLN 604) excess payment was sought to be

recovered which was made to the appellants teachers on account of mistake and wrong interpretation of prevailing Bihar Nationalised Secondary School (Service Conditions) Rules, 1983. The appellants therein contended that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount should not be recovered from them, it having been paid without any misrepresentation or fraud on their part. The Court held that the appellants cannot be held responsible in such a situation and recovery of the excess payment should not be ordered, especially when the employee has subsequently retired. The court observed that in general parlance, recovery is prohibited by courts where there exists no misrepresentation or fraud on the part of the employee and when the excess payment has been made by applying a wrong interpretation/ understanding of a Rule or Order. It was held thus:

59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no

recovery of the amount that has been paid in excess to the appellant teachers should be made."

13. In State of Punjab and Others v. Rafiq Masih (White Washer) and Others wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:

"8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.

xxx xxx xxx

18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein

recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the 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, even though 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 an extent, as would far outweigh the equitable balance of the employer's right to recover."

14. Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General.

15. Having regard to the above, we are of the view that an attempt to recover the said increments after passage of ten years of his retirement is unjustified.

16. In the result, the appeal succeeds and is accordingly allowed. The Judgment and order of the Division Bench dated 02.03.2009 and also of the learned Single Judge of

the High Court dated 05.01.2006 impugned herein, and the order dated 26.06.2000 passed by the Public Redressal Complaint Cell of the Chief Minister of Kerala and the recovery Notice dated 09.10.1997 are hereby set aside. There shall be no order as to costs."

10. Here is a case where there was no misrepresentation

fraud or any other illegality on the part of the petitioner in the

matter of securing Grade Promotion to the petitioner. Going by

the judgment rendered in Thomas Daniel's case(supra), it can be

seen that the recovery effected from the year 2001 for an

amount of Rupees more than two lakhs, cannot be sustained

under law. It is clear from the judgment in Thomas Daniel's case

that a person who is weaker of the two and is not causing any

serious detriment to the State, the issue resolved would be in

consonants with the concept of justice, which is assured to the

citizens of India even in the preamble of the Constitution of India.

11. On a consideration of the facts and circumstances, I am

of the considered opinion that if recovery is effected from the

salary or the retirement benefits of the petitioner, it would cause

serious prejudice to the petitioner and her family, especially due

to the fact that there was no misrepresentation or any other

illegality on the part of the petitioner in the matter of granting

Grade Promotion. So also, this question was considered by a

Division Bench of this Court in State of Kerala and Others v.

Vinod Kumar C.R. [2020 KHC 468], wherein the undertaking

given by an employee was also considered taking into account all

the judgment of the Apex Court as on that date and has arrived

at a conclusion that merely because an undertaking is made, that

will not enable the employer to seek recovery of the salary, if the

promotion granted was not on account of any misrepresentation

on the part of the employee.

12. Taking into consideration the above aspects and the

legal position culled out, I am of the opinion that the petitioner

is entitled to succeed in this writ petition. Therefore, this writ

petition is allowed. The impugned orders are all quashed.

13. During the pendency of the writ petition, on the basis

of the interim order passed by this Court on 8.7.2014, undisputed

gratuity was released to the petitioner. Consequently, there will

be a direction to the respondents to pay all the balance amount

due to the petitioner towards retirement benefits and others, if

any, at the earliest and any rate within two months from the

receipt of a copy of this judgment.

Sd/-

Shaji P. Chaly, Judge sou.

APPENDIX OF WP(C) 660/2014

PETITIONER EXHIBITS

EXT.P1 - TRUE COPY OF THE ORDER NO.C3-37905/88(C) DATED 22-4-2000 OF THIS HON'BLE HIGH COURT.

EXT.P2 - TRUE COPY OF THE JUDICIAL MAGISTRATE COURT-I, ERNAKULAM BY THIS HON'BLE COURT AS PER ORDER NO.C6-20153/2000 DATED 22-11-

EXT.P3 - TRUE COPY OF THE ORDER NO.C6-19548/99 DATED 11-9-2001 OF THIS HON'BLE HIGH COURT.

EXT.P4 - TRUE COPY OF THE ORDER NO.C6-19548/99 DATED 22-11-2001 OF THIS HON'BLE HIGH COURT.

EXT.P5 - TRUE COPY OF THE ORDER NO.C6-19548/99 DATED 24-12-2001 OF THIS HON'BLE HIGH COURT.

EXT.P6 - TRUE COPY OF THE ORDER NO.C6-3916/2006 DATED 17-2-2000 OF THIS HON'BLE HIGH COURT.

EXT.P7 - TRUE COPY OF THE ORDER NO.C6-39177/2007 DATED 3-8-2007 OF THIS HON'BLE HIGH COURT.

EXT.P8 - TRUE COPY OF THE ORDER NO.C6-51624/2010 DATED 30-7-2010 OF THIS HON'BLE HIGH COURT.

EXT.P9 - TRUE COPY OF THE ORDER NO.C6-60533/2001 DATED 28-10-220 OF THIS HON'BLE HIGH COURT.

EXT.P10 - TRUE COPY OF THE DRAFT SENIORITY LIST OF CONFIDENTIAL ASSISTANTS IN THE CRIMINAL WING OF SUBORDINATE JUDICIARY AS ON 1-8-

EXT.P11 - TRUE COPY OF THE FINAL SENIORITY LIST OF CONFIDENTIAL ASSISTANTS IN THE CRIMINAL WING OF SUBORDINATE JUDICIARY AS ON 8-10-

EXT.P12 - TRUE COPY OF THE ORDER NO.C6-19548/99 DATED 24-12-2001 FROM THIS HON'BLE COURT.

EXT.P13 - TRUE COPY OF THE SENIORITY LIST OF CONFIDENTIAL ASSISTANT PUBLISHED BY THIS HON'BLE COURT ON 28-10-2002.

EXT.P14 - TRUE COPY OF THE OFFICE MEMORANDUM DATED 25-11-2010 ALONG WITH RELEVANT EXTRACT OF THE INSPECTION REPORT.

EXT.P15 - TRUE COPY OF THE REPLY TO EXT.P14 SUBMITTED ON 10-11-2011 TO THE 4TH RESPONDENT BY THE PETITIONER.

EXT.P16 - TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT JUDGE DATED 10-12-2012 ALONG WITH COVERING LETTER OF THE 4TH RESPONDENT.

EXT.P17 - TRUE COPY OF THE JUDGMENT DATED 21-6-2012 IN WPC.NO.4798/2006.

EXT.P18 - TRUE COPY OF THE REPRESENTATION DATED 21-

1-2013 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXT.P19 - TRUE COPY OF THE ORDER NO.C6-10037/2013 DATED 11-9-2013 OF THE HON'BLE HIGH COURT OF KERALA.

EXT.P20 - TRUE COPY OF THE LIABILITY CERTIFICATE DATED 25-11-2013.