Kerala High Court
The Director vs Dr.H.Moosa on 4 March, 2025
Author: Amit Rawal
Bench: Amit Rawal
2025:KER:22632
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TUESDAY, THE 4TH DAY OF MARCH 2025 / 13TH PHALGUNA, 1946
OP (CAT) NO. 263 OF 2019
AGAINST THE ORDER IN OA NO.234 OF 2017 OF CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
PETITIONERS/RESPONDENTS 2 & 3:
1 THE DIRECTOR
ICAR-CENTRAL PLANTATIONS CROPS RESEARCH INSTITUTE
(INDIAN COUNCIL OF AGRICULTURAL
RESEARCH),KUDLU.P.O,KASARAGOD-671124.
2 INDIAN COUNCIL OF AGRICULTURAL RESEARCH,
REPRESENTED BY ITS SECRETARY,ICAR, KRISHI BHAVAN,NEW
DELHI-110001.
3 OFFICER-IN-CHARGE
ICAR-CENTRAL PLANTATION CROPS RESEARCH INSTITUTE
(INDIAN COUNCIL OF AGRICULTURAL RESEARCH),REGIONAL
STATION,MINICOY, LAKSHADWEEP-682559.
PETITIONER NO.3 AND 4 ADDED.
4 OFFICER-IN-CHARGE,
ICAR-CENTRAL PLANTATION CROPS RESEARCH INSTITUTE
(INDIAN COUNCIL OF AGRICULTURAL RESEARCH),REGIONAL
STATION,MINICOY, LAKSHADWEEP-682559.
5 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,DEPARTMENT OF AGRICULTURAL
RESEARCH AND EDUCATION, MINISTRY OF AGRICULTURE,NEW
DELHI-110001.
THE RESPONDENT NOS. 5 AND 6 ARE TRANSPOSED AS
PETITIONER NOS.3 AND 4, AS PER THE ORDER DATED 07-12-
2020 IN I.A.1/2020 IN OP(CAT) NO.263/2019.
BY ADV P.SANTHOSH KUMAR (PANAMPALLI NAGAR)
OP(CAT) 263/2019
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2025:KER:22632
RESPONDENTS/APPLICANTS & 1ST & 4TH RESPONDENTS:
1 DR.H.MOOSA
ASSISTANT CHIEF TECHNICAL OFFICER,ICAR-CPCRI,REGIONAL
STATION,VITTAL,BANTWAL TK
K.K.DISTRICT,KARNATAKA-574243. RESIDING AT CPCRI
QUARTERS,TYPE-IV/13,CHOWKI,KASARGOD.
2 B.ANILKUMAR,
TECHNICAL ASSISTANT,ICAR-CPCRI,REGIONAL
STATION,KRISHNAPURAM.P.O,KAYAMKULAM-680533, RESIDING AT
DRISHYAM,MAMPALLIKUNNAM, CHATHANOOR.P.O,KOLLAM.
3 M.KRISHNAN,
TECHNICAL OFFICER,ICAR-CPCRI,KUDLU.P.O,
KASARAGOD-671124,RESIDING AT SREENANDANAM, SURABHI
HOUSING COLONY,NULLIPPADY, KASARAGOD.
4 T.N.VIDYADHARAN,
ASSISTANT,ICAR-CPCRI,REGIONAL STATION,
MINICOY,LAKSHAMDWEEP-6825559,RESIDING AT CPCRI
QUARTERS,MINICOY,LAKSHADWEEP.
5 OFFICER-IN-CHARGE, (TRANSPOSED)
ICAR-CENTRAL PLANTATION CROPS RESEARCH INSTITUTE
(INDIAN COUNCIL OF AGRICULTURAL RESEARCH),REGIONAL
STATION,MINICOY, LAKSHADWEEP-682559.
TRANSPOSED AS P3.
6 UNION OF INDIA, (TRANSPOSED)
REPRESENTED BY ITS SECRETARY,DEPARTMENT OF AGRICULTURAL
RESEARCH AND EDUCATION, MINISTRY OF AGRICULTURE,
NEW DELHI-110001.
TRANSPOSED AS P4.
BY ADVS.
SRI.VISHNU S.CHEMPAZHANTHIYIL
KRISHNA T C
DEPUTY SOLICITOR GENERAL OF INDIA
OTHER PRESENT:
SRI T C KRISHNA DSGI IN CHARGE
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 04.03.2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CAT) 263/2019
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2025:KER:22632
JUDGMENT
K. V. JAYAKUMAR, J Feeling aggrieved by the order of the Central Administrative Tribunal in O.A.No.234/2017 dated 09.10.2018, Union of India and its officers preferred this appeal. The respondents/applicants approached the Tribunal claiming the following reliefs.
"1. Call for the records leading to the issue of Annexure A7 series of orders and set aside Annexure A7 series of orders
2. Direct the Respondents to not to effect any recovery pursuant to Annexure A5 and A7 series of orders.
3. Any other further relief or order as this Hon'ble Tribunal may deem fit and proper to meet the ends of justice.
4. Award the cost of these proceedings."
2. The Tribunal, as per the impugned order, allowed the claim of the respondents/applicants. The respondents/applicants are the employees of Indian Council of Agricultural Research - Central Plantation Crops Research Institute (ICAR-CPCRI) working at Minicoy, Lakshadweep.
As per O. M dated 29.08.2008 of the Ministry of Finance, Department of Expenditure, Central Government employees posted in Nicobar group of Islands and Minicoy in Lakshadweep Islands are entitled to Hard Area Allowance. Vide Annexure-A3, the rates and eligibility criteria for the grant OP(CAT) 263/2019 4 2025:KER:22632 of such allowance were fixed. As per Annexure-A4, the recipients were asked to opt between two allowances which benefits them the most.
3. As per notice dated 28.12.2016, the respondents/applicants were required to choose between the two allowances as drawal of both simultaneously would amount to excess payment.
Accordingly, the respondents are directed to refund large sums of money.
4. The contention of the respondents/applicants is that, recovery of amounts is impermissible in view of the dictum laid down in State of Punjab and others v. Rafiq Masih (White Washer) and others [(2015) 4 SCC 334].
5. The contention of the petitioners was that, audit department has raised an objection to the effect that drawal of the both the allowances is illegal. The contention of the Union of India was that the judgment in Rafiq Masih's case (supra) has no relevance in this case since the applicants were directly responsible for sanctioning inadmissible allowances.
6. The Tribunal, noticing the rival contentions of the parties and placing reliance on the decision in Rafiq Masih's case (supra), allowed the claim of the applicants. OP(CAT) 263/2019 5 2025:KER:22632
7. The petitioners/Union of India and its officers submitted that the impugned order is patently illegal and unsustainable.
The decision in Rafiq Masih's case (supra) is not applicable in this matter.
8. Per contra, the learned counsel for the respondents/applicants would submit that the recent case would come within the purview of Rafiq Masih's case (supra). The Tribunal, noticing the rival contentions of the parties, allowed the claim and disposed the O.A. The relevant paragraphs of the order of the Tribunal are extracted hereunder:
"6. This O.A is concerned with recovery of a large sum of money from the applicants on account of wrong drawal of two allowances when they were entitled to only one. The seminal judgment in the matter of recovery of sums from employees is Rafiq Masih. This order has deemed as impermissible recovery under the following contingencies:
(i) Recovery from employees belonging to Class-III and Class-IV service for Group C and Group 'D' service)
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery
(iii) Recovery from 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.
OP(CAT) 263/2019 6 2025:KER:22632
7. In this case recovery has been ordered as per Annexure A-7 series dated 25.2.2017 and this involves alleged over payments disbursed from 2008 onwards. Applicants are entitled to the benefits coming under Clause (iii) above and recovery of amounts disbursed before 25.2.2017 are not liable to be refunded. As there is no bar otherwise on the recovery instituted, except the above, any sum paid in excess after 25.2.2017 can be recovered. The interim stay issued on recovery on 22.3.2017 is modified to this extent and is deemed as final. The O.A is disposed of accordingly. No costs."
9. Upon hearing the submissions of the counsel for the parties and on perusal of the paper book, we do not find any illegality or perversity in the order of the Central Administrative Tribunal. The Tribunal has applied the question of facts and law in its correct perspective and arrived at a proper conclusion. No good ground for interference is made out.
Therefore, OP(CAT) No.263/2019 fails and it stands dismissed.
Sd/-
AMIT RAWAL JUDGE Sd/-
K. V. JAYAKUMAR JUDGE Sbna/ OP(CAT) 263/2019 7 2025:KER:22632 APPENDIX OF OP (CAT) 263/2019 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION NO.234 OF 2017 WITH ITS ANNEXURES EXHIBIT P1(A7) TRUE COPY OF THE MEMORANDUM NO.F.NO.(6) (1481)/2013-ESTT.DATED 25.2.2017 ISSUED TO THE 1ST APPLICANT EXHIBIT P1(A7(A)) TRUE COPY OF THE MEMORANDUM NO.F.NO.(6) (1481/2013-ESTT.DATED 25.2.2017 ISSUED TO THE 2ND APPLICANT EXHIBIT P1(A7(B)) TRUE COPY OF THE MEMORANDUM NO.F.NO.(6) (1481/2013-ESTT.DATED 25.2.2017 ISSUED TO THE 3RD APPLICANT EXHIBIT P1(A7(C)) TRUE COPY OF THE MEMORANDUM NO.F.NO.(6) (1481/2013-ESTT.DATED 25.2.2017 ISSUED TO THE 4TH APPLICANT EXHIBIT P1(A1) TRUE COPY OF O.M.NOI.12(4)2008-E.II(B)DATED 29.8.2008 ISSUED BY THE MINISTRY OF FINANCE,UNION OF INDIA.
EXHIBIT P1(A2) TRUE COPY OF O.M.NO.12(4)2008-E.II(B)DATED 09.11.2011 ISSUED BY THE MINISTRY OF FINANCE,UNION OF INDIA.
EXHIBIT P1(A3) TRUE COPY OF RELEVANT PORTION OF THE GAZETTTE OF INDIA EXHIBIT P1(A4) TRUE COPY OF O.M.NO.12(1)/E.II(B)/03 DATED 01.03.2004 ISSUED BY THE MINISTRY OF FINANCE.
EXHIBIT P1(A5) TRUE COPY OF MEMORANDUM NO.F.NO.7(4)/AUDIT/09-MCY-207-210 DATED 28.12.2016 ISSUED BY THE 1ST RESPONDENT TO THE 1ST APPLICANT.
EXHIBIT P1(A 5(A)) TRUE COPY OF MEMORANDUM NO.F.NO.7(4)AUDIT/09-MCY-223-226 DATED 28.12.2016 ISSUED BY THE 1ST RESPONDENT TO THE 2ND APPLICANT.
EXHIBIT P1(A-5(B) ) TRUE COPY OF MEMORANDUM NO.F.NO.7(4)AUDIT/09-MCY-223-226 DATED 28.12.2016 ISSUED BY THE 1ST RESPONDENT TO THE 3RD APPLICANT.
EXHIBIT P1(A 5(C)) TRUE COPY OF MEMORANDUM NO.F.NO.7(4)AUDIT/09-MCY-223-226 DATED 28.12.2016 ISSUED BY THE 1ST RESPONDENT TO THE 4TH APPLICANT.
OP(CAT) 263/2019 8 2025:KER:22632 EXHIBIT P1(A 6) TRUE COPY OF REPRESENTATION DATED 19.1.2O17 OF THE 1ST APPLICANT TO RESPONDENTS 1 & 2 EXHIBIT P1(A 6(A)) TRUE COPY OF REPRESENTATION DATED 21.1.2O17 OF THE 3RD APPLICANT TO RESPONDENTS 1 & 2 EXHIBIT P1 (A 6(B)) TRUE COPY OF REPRESENTATION DATED 24.1.2O17 OF THE 3RD APPLICAT TO RESPONDENTS 1 & 2 EXHIBIT P1 (A 6(C) TRUE COPY OF REPRESENTATION DATED 18.1.2O17 OF THE 4TH APPLICANT TO RESPONDENTS 1 & 2 EXHIBIT P1(A 8) TRUE COPY OF O.M.NO.F.NO.18/03/2015-ESTT.
(PAY-I)DATED 2.3.2016 ISSUED BY THE GOVERNMENT OF INDIA, DEPARTMENT OF PERSONAL AND TRAINING.
EXHIBIT P2 TRUE COPY OF REPLY STATEMENT DATED 26.08.2017 IN O.A.NO.234 OF 2017 WITH ITS ANNEXURES.
EXHIBIT P2(R2 (1)) A TRUE COPY OF THE AUDIT OBSERVATION NO.CE/AB/IV/7-53/CPCRI/2015-16/287 DATED 15.01.2016 EXHIBIT P2(R2(2)) A TRUE COPY OF THE RECOVERY DETAILS OF THE APPLICANT NO.1 EXHIBIT P2(R2 (3) ) A TRUE COPY OF THE RECOVERY DETAILS OF THE APPLICANT NO. 2 AND 3 EXHIBIT P2(R2(4) ) A TRUE COPY OF THE RECOVERY DETAILS OF THE APPLICANT NO.4 EXHIBIT P2(R2 (5) ) A TRUE COPY OF THE OFFICE ORDER F.NO.4(41)98-ESTT-1 DATED 20.05.2009 TO THE APPLICANT EXHIBIT P2(R2 (6) A TRUE COPY OF THE OFFICE ORDER F.NO.4(14)/2004-ESTT.DATED 15.04.2013 EXHIBIT P2(R2(7)) A TRUE COPY OF THE OFFICE ORDER F.NO.4(14)/2004-ESTT DATED 19.05.2014 EXHIBIT P3 TRUE COPY OF THE REJOINDER DATED 30.09.2018 OF THE HON'BLE TRIBUNAL IN O.A.NO.327 OF 2017 EXHIBIT P3(A9) TRUE COPY OF ORDER DATED 6.4.2018 IN O.A.NO.180/00226/2017 OF THE HON'BLE TRIBUNAL EXHIBIT P4 TRUE COPY OF THE ORDER DATED 09.10.2018 OF THE HON'BLE TRIBUNAL IN O.A.NO.234 OF 2017.