Kerala High Court
Sreedharan vs Union Of India on 22 October, 2001
Equivalent citations: [2002(93)FLR303]
Author: K. Balakrishnan Nair
Bench: K.S. Radhakrishnan, K. Balakrishnan Nair
JUDGMENT K. Balakrishnan Nair, J.
1. The point put-forward for our decision in this Original Petition is the permissibility of reduction of pay of a Government servant long after his retirement with effect from a date long before his superannuation.
2. The skeletal facts absolutely necessary for the disposal of the case are the following:
3. The petitioner was an Inspector (Works) Grade I in the Railways under the second respondent. By way of punishment for misconduct, he was compulsorily retired from service on 26.11.1990. The said punishment has become final. While so, on 24.9.1993 almost after three years of his retirement from service, his pay was reduce with effect from 1.11.1986 without notice or hearing to the applicant. Consequently, his pension was refixed and the alleged excess payment was recovered from the amounts due to him. The aggrieved petition approached the Central Administrative Tribunal, Ernakulam Bench by filing O.A. No. 1021/97 praying, inter alia, for a declaration that the "revision/reduction of the applicant's pay after retirement is illegal and direct the respondents to regulate his salary accordingly." It was the 8th relief sought in the O.A. There were other prayers also. The Tribunal has granted the said relief as sought for by the applicant in the following words:
"In view of the above, we declare that the reduction of the salary of the applicant with retrospective effect after retirement as illegal being opposed to the principles of natural justice."
Certain other reliefs also were granted. The dissatisfied petitioner filed this Original Petition seeking various reliefs. At the time of final hearing of this Original Petition, the petitioner confined his argument to 2 reliefs:-
1. to refund the amount recovered from his terminal benefits towards alleged excess payments made to him while in service.
2. to compute his pensionary benefits on the basis of the unreduced pay.
From Ext. P8 reply statement filed in O.A. No. 290/95, it is evident that an amount of Rs. 20,930/- has been recovered from the leave salary and gratuity. The amount recovered from the leave salary was Rs. 17,475/- and from the DCRG Rs. 3,455/-. Even thought the Tribunal declared that the revision of pay after retirement with retrospective effect is invalid, it did not grant consequential relief to refund the entire amount recovered and also payment of terminal benefits taking into account his pre- revised pay. The petitioner pressed only these two matters in this Original Petition.
4. Counsel for the respondents at first attempted to contend that no amount has been recovered from the terminal benefits, but when confronted with the pleadings of the respondents in Ext. P8 at paras. 5 and 6, he did not further pursue the contention. Alternatively, it was contended that even if the recovery of arrears is set aside, the respondents should be permitted to implement the revision of pay notionally so that they can reduce his monthly pension accordingly. The Rules enabling such revision, if any mistake has occurred in the fixation of pay, were also pressed into service.
5. This court as well as the Supreme Court has been consistently dissuading recovery of excess pay pursuant to discovery of error in the pay fixation. This is subject to the qualification that pay was fixed by the competent officer without any misrepresentation from the employee. The decisions of the Supreme Court are in Shyam Babu Varma v. Union of India (1994 (2) SCC 521) and Sahib Ram v. State of Haryana (1995 (Supp.) 1 SCC 18). The decisions of this court start from Aliyamma v. Deputy Director (1982 KLT SN 45) and end with Sathyapalan v. Deputy Director (1998 (1) KLT 399). There are several unreported decisions also on this point.
6. In this context, the counsel for the respondents submitted that there is no bar against correcting the mistake and implementing the same prospectively. There may be power to correct mistake and regulate the pension prospectively in accordance therewith. But the exercise of power after several years of retirement of a Government servant cannot stand scrutiny in the light of the mandate to act fairly and reasonably, radiating from Article 14 of the Constitution of India. But, in this case, this aspect need not be decided by us because the Tribunal has already given a declaration in Ext. P1 that the reduction of the salary of the applicant with retrospective effect is illegal. The said declaration has become final. The Tribunal in its discretion did not give liberty to the respondents to refix the salary after affording an opportunity of hearing to the petitioner. Since the declaration made by the Tribunal has become final, the respondents are bound to implement it even in the absence of a consequential direction. So, the consequential direction sought by the petitioner herein is unnecessary. Even without any direction, the respondents being public authorities are bound to respect the declaration of law. This view taken by us is fortified by the decision of a Division Bench of this court in C.K.N. Nair v. K.M. Chandy (1976 KLT 879). It was a case which arose under the Contempt of Court Act. A declaration made by this court that the termination of the petitioner therein was inoperative was not respected by the respondents therein on the ground that no consequential direction was given by this court. In that context, this court said:
"But, it must be remembered that the respondent represents a public body. A public body cannot say that it is not prepared to observe the law. In a country wedded to Rule of Law, obedience to decisions of the court by public bodies is implied by its set up. It is rarely that a question is raised that a public body is not prepared to observe the law or the decision of a competent court. The effectiveness of a declaration rests on the foundation that any public body will always observe the law and the question of disobeying the declaration will never arise. So, a coercive direction is unnecessary in the judgment. Foulkes in his 'Introduction to Administrative Law', Third Edition, Page 183, states the principles thus:
"But in many cases in administrative law (and elsewhere) there is no question of the defendant, often a public body, not being prepared to observe the law : the problem is discovering what the law is, rather than securing its observance. But thought a declaration has no coercive force it may effectively undermine the enforceability of an administrative act."
Garner in his 'Administrative Law', Second Edition, page 162 states the principle thus:-
"A declaration is subject to the defect that it is not enforceable; in private law this is of course serious, but in public law the defect is insignificant, as no administrative agency can afford to be so irresponsible as to ignore an adverse decision of a High Court Judge."
7. In view of the above legal position, the respondents are bound to respect the declaration made by the Tribunal and refund all amounts recovered from the petitioner's terminal benefits. He is entitled to draw his monthly pension computed with reference to the unreduced pay and the same shall be paid to him with effect from the date his monthly pension was reduced. Accordingly, in modification of Ext. P1 order of the Tribunal, the following directions are issued:
(1) Pay the petitioner the amounts recovered from his gratuity and leave salary.
(2) Pay the petitioner, the monthly pension on the basis of his unreduced pay, including arrears of pension.
The above directions shall be implemented by the respondents within two months from the date of receipt of a copy of this judgment.
8. The Original Petition is allowed as above. No costs.