Kerala High Court
Kerala Transport Development Finance ... vs C.S. Sreekumaran Nair on 9 July, 2025
2025:KER:49866
W.A.No.2430 of 2018 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TH
WEDNESDAY, THE 9
DAY OF JULY 2025 / 18TH ASHADHA,
1947
WA NO. 2430 OF 2018
AGAINST THE JUDGMENT DATED 02.02.2017 IN WP(C) NO.21811
OF 2011 OF HIGH COURT OF KERALA
APPELLANT/1ST RESPONDENT:
ERALA TRANSPORT DEVELOPMENT FINANCE
K
CORPORATION LIMITED, REPRESENTED BY ITS
MANAGING DIRECTOR, REGISTERED OFFICE:6TH
FLOOR, TRANS TOWERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM - 695014.
Y ADVS.
B
SHRI.T.P.SAJAN, SC, KTDFC
SHRI.DEEPU THANKAN, SC, KERALA TRANSPORT
DEVELOPMENT FINANCE CORPORATION LIMITED
- KTDFC
ESPONDENTS/PETITIONER & 2ND
R
RESPONDENT:
1.
C.S. SREEKUMARAN NAIR, S/O.SIVASANKARA
PILLAI, SARADA VILASAM BUNGALOW, STUDIO
ROAD, NEMOM, THIRUVANANTHAPURAM.
RETIRED CHIEF MANAGER, KERALA TRANSPORT
DEVELOPMENT FINANCE CORPORATION
LIMITED.
2.
THE ACCOUNTANT GENERAL KERALA, OFFICE
OF THE ACCOUNTANT GENERAL,
THIRUVANANTHAPURAM - 695014.
HIS
T WRIT
APPEAL HAVING BEEN
FINALLY HEARD ON
30.05.2025,
THIS
COURT
ON
09.07.2025,
DELIVERED
THE
FOLLOWING:
2025:KER:49866
W.A.No.2430 of 2018 2
JUDGMENT
Sushrut Arvind Dharmadhikari, J.
This appeal has been filed with a delay of 385 days. Having
perused the reasons stated in the affidavit filed in support of the
application to condonedelay,wearesatisfiedthatsufficientcausehas
been made out to condone the delay.Hence,C.MAppln.No.2of2018
to condone the delay is allowed.
2. The present intra court appeal under Section 5 of the Kerala
HighCourtAct,1958,assailsthejudgmentdated02.02.2017passedin
W.P(C)No.21811 of 2011, whereby the learned Single Judge has
allowed the writ petition and quashed the impugnedorderofrecovery.
The appellant herein is the 1st respondent in the writ petition, the 1st
respondent is the writ petitioner, and the 2nd respondent remains the
same as in the writ petition.
3. The brief facts of the case are that the 1st respondent was
originally anemployeeoftheKeralaStateRoadTransportCorporation
(KSRTC) and at the time of constitution of the appellant - Kerala
Transport Development Finance Corporation Ltd., many of the
employees of the KSRTC were sent on deputation to the appellant -
Corporation. As per the proceedings of the KSRTC dated 28.11.1997
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W.A.No.2430 of 2018 3
the1strespondentwassentondeputationasSeniorGradeClerkinthe
appellant - Corporation. The 1st respondent continued on deputation
upto 2003. Vide Ext.P2 Government Order dated 19.09.2003 the 1st
respondent along withthreeotheremployees,whowereondeputation
with the appellant, were absorbed permanently. It was also orderedin
Ext.P2 that their salary will be fixed after deducting pension amount
from the last salary drawn before absorption. As per the said
Government Order, those Government employees who have been
permitted to be absorbed in the public sector undertaking shall be
deemed to have retired from the Government service fromthedateof
suchabsorptionandthepaywillbefixeddeductingthepensionamount
payable to the employees. It is on the basis of the said Government
Orderthatthefixationofpaydeductingthepensionamountpayableto
the 1st respondent from the KSRTC is fixed.
4. As per the Government order dated 02.06.1986 Government
had notified the following conditions:
"3(b). Those whoretirevoluntarilyaheadofthe
ate of superannuation and who are absorbed in the
d
quasi Government Institutions will be allowed to
receive the full salary under the institution but, their
pensionary benefits from the Governmentwillbekept
in abeyance until the end of their service in the
institution."
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W.A.No.2430 of 2018 4
5. The appellant without noticing this Government Order dated
02.06.1986,insteadoffixingthepayinthenewpayscale,pensionwas
deducted from the basis pay last drawn in the KSRTC and this
continued from 2003 onwards. On 25.11.2008, the audit party of the
appellant raised an objection regarding wrong fixation of pay and the
allegedconsequentexcesspaymentofsalarytothe1strespondent.In
the audit objection it is stated that while fixing the initial pay after
absorption of the 1st respondent, there has been defect in fixation of
the basicpayandasaresultanexcesspaymentofRs.2,59,188/-was
made to the 1st respondent. On this basis Ext.P8 notice dated
28.11.2008 was issued to the 1st respondent directing refund of the
aforesaidamount.Beingaggrieved,1strespondenthadchallengedthe
recovery order in the writ petition. The writpetitionwasfinallydecided
on 02.02.2017,whereinthelearnedSingleJudgeallowedthesameby
quashing the impugned recovery order. Being aggrieved the 1st
respondent in the writ petition had filed this appeal.
6. The learned counsel for the appellant contended that the
recovery order was passed pursuant to an audit objection raised on
account of excess payment made to the 1st respondent. The learned
Single Judge, however, failed to appreciate the fact that the 1st
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W.A.No.2430 of 2018 5
respondent had received excess payment for which he is not entitled.
Even otherwise the order impugned is not sustainable in the eyes of
law.
7. Even though service has not been completed on respondent
No.1, no prejudice will be caused to him by the judgment which we
intend to pass.
8. Heard the learned counsel for the appellant and perused the
records.
9.Onperusaloftheimpugnedjudgment,andconsideringthefact
that the recoveryproposalwasissuedagainstthe1strespondentafter
hisretirement,i.e.,on31.10.2008,norecoverycouldhavebeenmade.
The Apex Court in the case of State ofPunjabandothersvs.Rafiq
Masih (White Washer) etc. reported in 2015 (1) MPHT130(SC)has
held as under :
" It is not possible to postulate all situations of hardships where
payments have mistakenly been made by an employer, in the
following situations, a recovery by the employer 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 employeeswhoaredueto
retire within one year of the order of recovery.
(iii) Recovery from employees, whentheexcesspaymenthasbeen
made for a period in excess of five years, before the order of
recovery is issued.
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W.A.No.2430 of 2018 6
( 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 haverightfullybeenrequiredto
work against an inferior post.
(v)Inanyothercase,wheretheCourtarrivesattheconclusion,that
recoveryifmadefromtheemployee,wouldbeiniquitousorharshor
arbitrary to such an extent, as would far outweigh the equitable
balance of the employer's right to recover."
10. Upon perusal of the aforesaid judgment, Clauses (i) and (ii)
are found to be applicable to the facts of the present case.
11. It is an admitted fact that the 1st respondent did not
misrepresent his case before the authorities nor had undertaken to
refund theamountatanypointoftimewithregardtorecoverytowards
wrong pay fixation. As such no recovery is permissible.
12.Inviewoftheaforesaid,weareoftheconsideredopinionthat
thelearnedSingleJudgehasnotcommittedanyerroronthefaceofthe
record so as to interfere with the judgement impugned.
Consequently,thewritappealbeingbereftofmeritandsubstance
is hereby dismissed. No order as to costs.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI
JUDGE
Sd/-
SYAM KUMAR V.M.
JUDGE
MC/7.7
