Kerala High Court
T.R. Komalan vs The Secretary on 3 March, 2021
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942
WP(C).No.12421 OF 2020(C)
PETITIONER:
T.R. KOMALAN, AGED 56 YEARS
S/O RAMAN, KUZHIYATHU VEEDU, PADUKOTTUKKAL, THATTAYIL
P.O.,PIN-691 525. PATHANAMTHITTA DISTRICT.
SRI.B.KRISHNA KUMAR
SRI.DINESH THANKAPPAN
SRI.A.CHANDRA BABU
RESPONDENTS:
1 THE SECRETARY
TRAVANCORE DEVASWOM BOARD OFFICE, NANTHANCODE,
THIRUVANANTHAPURAM-695 033.
2 THE COMMISSIONER,
TRAVANCORE DEVASWOM BOARD OFFICE, NANTHANCODE,
THIRUVANANTHAPURAM-695 033.
3 THE ASSISTANT DEVASWOM COMMISSIONER,
TRAVANCORE DEVASWOM BOARD OFFICE, ARANMULA, ARANMULA
P.O., PIN-689 533, PATHANAMTHITTA DISTRICT
4 THE ASSISTANT DEVASWOM ACCOUNTS OFFICER,
TRAVANCORE DEVASWOM BOARD OFFICE, AMBALAPUZHA,
ALAPPUZHA DISTRICT-688 561.
SRI.C.K.PAVITHRAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.12421 OF 2020(C)
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JUDGMENT
Dated this the 3rd day of March 2021 The petitioner, who is stated to have retired as a Full- time Watcher from the services of the Travancore Devaswom Board on 31.05.2020, has approached this Court impugning Ext.P2 objections raised against certain benefits which he had availed, while he was in service; and further seeking that his retiral benefits be directed to be released to him de hors the said objections, within a time frame to be fixed by this Court.
2. The learned counsel for the petitioner, Sri.B.Krishna Kumar, vehemently asserted that the objections in Ext.P2 are completely untenable and that, in any event of the matter, because of the judgment of the Hon'ble Supreme Court in State of Punjab & others v. Rafiq Masih (White Washer) & others [(2015) 4 SCC 334], no recovery is possible from him since he has retired from the service and because he was in Class IV service.
3. The petitioner contends that in such cases, the Hon'ble Supreme Court has prohibited any recovery, particularly of those benefits that were given to the employees more than five years before such recovery was attempted and which were WP(C).No.12421 OF 2020(C) 3 disbursed without any fault or error being attributed to the said employee.
4. The petitioner then argues that the objections in Ext.P2 relate to pay fixations which were made validly by the Devaswom Board more than two decades ago and therefore, that no amounts can be now recovered from his pension, going by the affirmative declarations of the Hon'ble Supreme Court. The petitioner then added that he has already preferred Ext.P3 representation before the Commissioner of Travancore Devaswom Board; and thus alternatively prays that the same be directed to be taken up and disposed of at the earliest.
5. In response, the learned standing counsel for the Board - Sri.C.K.Pavithran, submitted that there is no legal impediment in Exhibit P3 being taken up and disposed of and he offered that while doing so, the Commissioner will also implicitly advert to the declarations of law in Rafiq Masih (supra). The learned standing counsel, therefore, prayed that this writ petition be ordered on such terms and added that his client will dispose of Ext.P3 within the shortest period.
6. When I consider the afore submissions, prima facie, I find favour with the petitioner that Ext.P2 cannot be used by WP(C).No.12421 OF 2020(C) 4 the Devaswom Board to deny pensionary benefits to him. This is because, even if the contents of Ext.P2 are completely accepted, it is clear that what is sought to be recovered from him are benefits which were given as early as in the years 1993 and 1994. Going by Rafiq Masih (supra), any recovery from the petitioner at this point of time would become impermissible because there is nothing on record to even indicate that the benefits, that are mentioned in Ext.P2, were granted and availed of by the petitioner on account of any fault that can be attributed to him. On the other hand, even Ext.P2 would show that such benefits were given on the strength of valid sanction and, therefore, unless the Board has a case that any undertaking had been given by the petitioner, at that time, to the effect that such benefits could be recovered, even the subsequent judgment of the Hon'ble Supreme Court in High Court of Punjab and Haryana v. Jagdev Singh [(2016) 14 SCC 267] will not enable them to effect any recovery.
7. That said, I am of the certain view that it would not be prudent or proper for this Court to conclusively determine this matter at this time, since Ext.P3 is admittedly pending before the Commissioner and since he is the competent Authority to WP(C).No.12421 OF 2020(C) 5 decide the eligibility of the petitioner to pension at the first instance.
8. In the afore circumstances, I order this writ petition and direct the second respondent - Commissioner of the Board to take up Ext.P3 representation of the petitioner and dispose of the same, adverting specifically to the declaration of law in Rafiq Masih (supra) and to my observations above; and to thus issue an appropriate order, thereon as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment.
I make it clear that after the afore exercise is completed, all eligible retiral benefits of the petitioner shall be disbursed to him without any further delay thereafter, but not later than one month from the date on which the second respondent passes orders in terms of these directions.
Sd/- DEVAN RAMACHANDRAN
Stu JUDGE
WP(C).No.12421 OF 2020(C)
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APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE MEMO VIDE ROC NO
41/93/MIS DATED 2.6.1993 ISSUED BY THE 2ND RESPONDENT THE DEVASWOM COMMISSIONER.
EXHIBIT P2 THE TRUE COPY OF THE LETTER VIDE ROC 6/87/AUDIT DATED 2.3.2020 ISSUED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT EXHIBIT P3 THE TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER TO THE 2ND RESPONDENT DATED 7.3.2020