Kerala High Court
Geetha.S vs State Of Kerala on 3 August, 2021
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 3RD DAY OF AUGUST 2021 / 12TH SRAVANA, 1943
OP(KAT) NO. 114 OF 2020
AGAINST THE ORDER IN OA.NO.2197/2019 OF THE KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM BENCH
PETITIONER/APPLICANT:
GEETHA S., AGED 56 YEARS,
W/O.JAYASANKAR C U, RETIRED HEADMISTRESS GOVT HIGH SCHOOL,
KARIPOOTHITTA, ARPOOKARA, KOTTAYAM-686008, RESIDING AT
PRANAVAM, PULINCHUVADU, KUDAMALOOR, KOTTAYAMPIN-686017
BY ADVS. M/S.V.JOHN MANI, S.JAYANT, VARGHESE SABU,
MANJU ELSA ISAC
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY SECRETARY GENERAL EDUCATION
DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM, 695001
2 DIRECTOR OF GENERAL EDUCATION,
GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695001
3 DEPUTY DIRECTOR OF EDUCATION KOTTAYAM,
OFFICE OF DEPUTY DIRECTOR OF EDUCATION, VAYASARAKUNNU,
KOTTAYAM- 686001
4 ASSISTANT TREASURY OFFICER,
SUB TREASURY, GANDHINAGAR, KOTTAYAM-686008
5 ACCOUNTANT GENERAL,
OFFICE OF ACCOUNTANT GENERAL, THIRUVANANTHAPURAM-695001
SRI.B.UNNIKRISHNA KAIMAL, GOVT.PLEADER
THIS OP(KERALA ADMINISTRATIVE TRIBUNAL) HAVING BEEN FINALLY HEARD
ON 03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(KAT) No. 114 of 2021
2
ALEXANDER THOMAS & A.BADHARUDEEN, JJ.
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O.P.(KAT) No. 114 of 2021
[arising out of the impugned final order dated 4.2.2020 in O.A. No. 2197/2019
on the file of the KAT, Thiruvananthapuram Bench]
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Dated this the 3rd day of August, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The prayers in the afore captioned Original Petition (KAT) filed under Articles 226 & 227 of the Consitution of India are as follows [See page 6 of the paper book of this OP(KAT)]:
"
i. To set aside Ext.P1 order.
ii. To direct the 3rd respondent to issue a NLC to the 4 th respondent and
further directing the 4th respondent to release to petitioner her DCRG with 12% interest from the date of retirement.
iii. To declare that Non-Liability Certificate is not required to be obtained from Headmistress, Govt. High School, Kudamaloor for the purpose of releasing DCRG to the petitioner.
iv. Pass such other orders as may be deemed fit, necessary and just in the peculiar facts and circumstances of this case. „
2. Heard Sri.John Mani, learned counsel appearing for the petitioner in the O.P./applicant in the O.A. before the Tribunal and Sri.B.Unnikrishna Kaimal, learned Government Pleader appearing for all the respondents in the O.P./ respondents in the O.A. before the Tribunal.
O.P.(KAT) No. 114 of 20213
3. The prayers in Ext.P-2 original application O.A. No. 2197/2019 filed by the petitioner herein before the KAT, Thiruvananthapuram Bench, are as follows [See page 24 of the paper book of this OP(KAT)]:
"
i. To direct the 3rd respondent to issue a Non Liability Certificate to the 4th respondent with immediate effect with respect to the disbursement of DCRG of applicant.
ii. An order directing the 4th respondent to disburse Death Cum Retirement Gratuity to applicant with immediate effect. iii. Direct the 4th respondent to pay DCRG amount along with 12% interest from the date of retirement of applicant to the date of payment.
iv. To award cost for this proceedings to the applicant. v. Any other order or relief this Hon'ble Court may deem fit and proper.„
4. The applicant was initially working as High School Assistant and was later promoted as Headmistress in Goverment School Service and she had retired from service on 31.3.2019 while holding the post of Headmistress of the Government School concerned. The main complaint of the petitioner is regarding the non disbursement of DCRG, eventhough pension and DCRG were authorized in her favour as per as per Anx.A-1 Pension Payment Order (PPO) dated 13.5.2019 and Anx.A- 2 Gratuity Payment OderS (GPO) dated 3.5.2019 & 19.7.2019. It appears that the full amount of DCRG authorized in favour of the applicant was not disbursed to her on account of non issuance of Non-Liability O.P.(KAT) No. 114 of 2021 4 Certificate/Liability Certificate (NLC/LC) by the competent authority concerned. It appears that while the original applicant was engaged in census duty for the period from 12.4.2010 to 27.5.2010, she was granted earned leave surrender for 24 days and later it appears that the department had taken the stand that teachers like the original applicant who were entrusted with census duty were eligible for leave surrender for 8 days only, the applicant was directed to refund the alleged excess amount of Rs.12,288/- as per Anx.A-9 letter dated 10.5.2019.
5. From the pleadings on record as well as from the findings of the Tribunal at Ext.P-1 it is seen that the abovesaid objection was raised initially on the basis of G.O.(MS) No.171/2010/GAD dated 30.4.2010 that earned leave surrender in such cases could have been given for teachers engaged in census duty only for 8 days. Later, it appears that the Government has issued Anx.A-8 letter dated 14.5.2013 ordering that the operation of said G.O.(MS) dated 20.4.2013 shall be kept in abeyance until further orders. From the stand taken by the respondents in the O.A. it appears that the directions in Anx.A-8 dated 14.5.2013 (ordering to keep in abeyance the said G.O. dated 20.4.2013 until further orders) have not been varied till date. Hence, the Tribunal held in Ext.P-1 final order that therefore nothing stands in the way of O.P.(KAT) No. 114 of 2021 5 disbursal of full amount of DCRG, which would be subject to further clarification to be vitiated by the Government. Accordingly, the Tribunal disposed of the O.A. by directing respondents 2 & 3 in the O.A. to ensure that the full amount of DCRG is disbursed to her on executing a bond undertaking to indemnify against the future liabilities. It appears that the applicant has executed the bond and has received the full amount of DCRG on 30.11.2020 in pursuance of the verdict of the Tribunal. The applicant has now filed the present O.P. contending that the Tribunal should not have given liberty to the respondents in the O.A. to finalize and recover the said liability of Rs.12,288/- by way of future liabilities, etc.
6. After hearing both sides it appears that the abovesaid alleged lialibility of excess drawal of earned leave surrender amount is for the period from 12.4.2010 to 27.5.2010. For the first time, notice alleging such liabilities has been issued to the applicant only as per Anx.A-9, issued as late as on 10.5.2019, and that too after the retirement of the applicant on 31.3.2019. Even now the respondents do not have any case that the direction in Anx.A-8, has in any manner been varied. In other words, the direction in Anx.A-8 ordering to keep in abeyance the recovery in terms of G.O.(MS) dated 20.4.2013 is still in force. That O.P.(KAT) No. 114 of 2021 6 apart, the abovesaid alleged liability amounts are in relation to a period which is almost 9 years prior to the retirement of the petitioner.
7. Rule 3C of Part III KSR provides as follows:
"
3C. Notwithstanding anything contained in these rules, recovery of excess payments made to an officer by mistake within a period of four years before his retirement and which are detected within a period of four years after retirement, subject to the condition that such deduction if made from his pension shall be effected only in monthly ihnstalments in whole rupees and that the amount of each instalment shall not exceed 10 per cent of the monthly pension admissible to him. „
8. A reading of Rule 3C of Part III KSR would make it clear that it is mandated therein that notwithstanding anything contained in the KSR, recovery of excess payments made to an officer by mistake within a period of four years before his retirement and which are detected within a period of four years after retirement, may be made from his pension and other amounts due to him after retirement, subject to the condition that such deduction if made from his pension shall be effected only in monthly ihnstalments in whole rupees and that the amount of each instalment shall not exceed 10 per cent of the monthly pension admissible to him. etcHence, Rule 3C can be pressed into service only if the excess payments made in mistake has occurred within a period of 4 years before the retirement. In the instant case, the excess mistaken payments are alleged to have been paid about 9 years O.P.(KAT) No. 114 of 2021 7 prior to the retirement of the original applicant.
9. Further, Subclause (ii) of Clause (b) of the proviso to the operative portion of Rule 3 of Part III KSR would also stipulate that department proceeding, if not instituted while the employee was in service, whether before his retirement or during his re-employment, shall not be in respect of any event which took place more than four years before such institution. Of course, Note 2 & Note 3 to Rule 3 of Part III KSR stipulates that though the word 'pension' used in the operative portion of Rule 3 does not include DCRG, liabilities which can be fixed against an employee or pensioner without resort to departmental/judicial proceedings, could be recovered after due notice within an outer time limit of 3 years from the date of retirement of the pensioner.
10. True, that the said outer time limit of 3 years has not expired in the instant case. But, it is also to be noted that the petitioner was working as HSA at the time of alleged mistaken payments.
11. In the celebrated White Washer's case {State of Pun- jab v. Rafiz Masih [(2015) 4 SCC 334]} , the Apex Court has held in para 18 thereof as follows:
"18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have O.P.(KAT) No. 114 of 2021 8 mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, 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 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, eventhough 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 extent, as would far outweigh the equitable balance of the employer's right to recover."
12. In the subsequent decision of the Apex Court in High Court of Haryana & Punjab v. Jagdev Singh [AIR 2016 SC 3523], it was held in para 9 as follows:
"9. The submission of the respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the State. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the respondent was clearly on notice of the fact that a future refixation or revision may warrant an adjustment of the excess payment, if any, made."
13. In para 10 of Jagdev Singh's case supra, the Apex Court has extracted para 18 of White Washer's case, and thereafter it was held in para 11 by the Apex Court in Jagdev Singh's case as follows: O.P.(KAT) No. 114 of 2021 9
"11. The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking."
14. The effect of the decision of the Apex Court in Jagdev Singh's case on the judgment in White Washer's case supra, was considered by the Division Bench of this Court in the case in State of Kerala & Ors. v. Vinod Kumar C.R. [2020 (4) KLT 230], wherein it has been held in para 7 thereof as follows:
"" .......... .......... ......... On a reading of both Rafiq Masih and Jagdev Singh, it is difficult for us to accept the contention of the learned Government Pleader that Jagdev Singh is a complete departure from the principles laid down in Rafiq Masih. From a reading of paragraphs 10 and 11 of Jagdev Singh, it appears to us that the Supreme Court had only clarified that in the case of recovery from retired employees or employees who are due to retire within one year of the order of recovery, there would be no bar in ordering recovery, if the employee concerned had executed an undertaking agreeing to refund any excess payment. We cannot read Jagdev Singh as having laid down the proposition that in every case where there is an undertaking as aforesaid, recovery can be ordered from the employee concerned whatever be the point of time that such payment was made. We cannot overlook the fact that there is not even a suggestion in Jagdev Singh that in the event of there being an undertaking to refund excess pay, none of the situations envisaged as items (i) to (v) of Rafiq Masih can be pressed into service. "
15. It can thus be seen that the Apex Court has not interfered with the directions contained in para 18 of White Washer's case supra, regarding clauses 1, 3, 4, & 5 and the modification made in Jagdev Singh's case supra is only in respect to clause 2 of the O.P.(KAT) No. 114 of 2021 10 direction in para 18 of White Washer's case supra. In other words, the directions issued by the Apex Court in clauses 1, 3, 4, & 5 of para 18 of White Washer's case supra have to be adhered to. Clause 1 of para 18 of White Washer's case supra deals with impermissibility of recov- ery from employees belonging to Classes III & IV (Group C & D service).
16. We are apprised that the post of HSA held by the petitioner at the time when alleged excess payments were made, is a Class III post. The amounts sought to be recovered are in relation to the periods which have occurred about 9 years prior to the retirement of the petitioner. Hence, we are of the view that, taking into consideration that the amount is not very significant, and also the fact that even now, the Government has not taken any decision as to whether or not the liabili- ties are still be pursued with, and also taking into account the dictum laid down in the White Washer's case supra, it may not be legally right and proper to keep the issue hanging and to seek recovery of the said amount of Rs.12,288/- in future. Accordingly, it is ordered that the proposal for recovery of said alleged amount of Rs.12,288/- will stand quashed and rescinded. Consequently, the bond executed by the original applicant for payment of full amount of DCRG, on account of abovesaid aspects, will also stand treated as cancelled. The directions O.P.(KAT) No. 114 of 2021 11 and orders of the Tribunal at Ext.P-1 will stand modified to the above- said limited aspects.
With these observations and directions, the above Original Petition (KAT) will stand disposed.
Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
A.BADHARUDEEN, JUDGE
MMG
O.P.(KAT) No. 114 of 2021
12
APPENDIX OF OP(KAT).NO. 114/2020
PETITIONER'S EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE ORDER DATED
04.02.2020 BY THE KERALA ADMINISTRATIVE
TRIBUNAL AT THIRUVANANTHAPURAM IN OA
NO.2197/2019
EXHIBIT P2 A TRUE COPY OF THE OA 2197/2019 FILED BY
THE PETITIONER BEFORE THE KERALA
ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM
EXHIBIT P2(A1) A TRUE COPY OF PENSION PAYMENT FOR ORDER
ISSUED BY OFFICE OF PRINCIPAL ACCOUNTING
GENERAL( A AND E KERALA) DATED
03.05.2019
EXHIBIT P2(A2) A TRUE COPY OF GRATUITY PAYMENT ORDER
ISSUED BY ACCOUNTANT GENERAL AS
NO.121941285 DATED 03.05.2019. A TRUE
COPY OF GRATUITY PAYMENT ORDER ISSUED BY
ACCOUNTANT GENERAL AS NO.121941285-1
DATED 19.07.2019
EXHIBIT P2(A2(A)) A TRUE COPY OF GRATUITY PAYMENT ORDER
ISSUED BY ACCOUNTANT GENERAL AS
NO.121941285-1 DATED 19.07.2019
EXHIBIT P2(A3) TRUE COPY OF ORDER NO.77/2011 ISSUED BY
FINANCE DEPARTMENT DATED 02.11.2011
EXHIBIT P2(A4) TRUE COPY OF ORDER NO.P5/60600/2014/DPI
ISSUED BY 2ND RESPONDENT DATED
07.01.2016
EXHIBIT P2(A5) TRUE COPY OF REPRESENTATION SUBMITTED BY
APPLICATION TO THE 3RD RESPONDENT DATED
19.09.2019
O.P.(KAT) No. 114 of 2021
13
EXHIBIT P3 A TRUE COPY OF THE MISCELLANEOUS
APPLICATION FILED BY THE PETITIONER FOR
ACCEPTING ADDITIONAL DOCUMENTS TO EXT.P2
APPLICATION
EXHIBIT P3(A6) A TRUE COPY OF THE NON LIABILITY
CERTIFICATE DATED 06.11.2019
EXHIBIT P3(A7) A TRUE COPY OF THE NON LIABILITY
CERTIFICATE DATED 07.08.2019
EXHIBIT P4 A TRUE COPY OF THE REPLY FILED BY THE
3RD RESPONDENT TO EXT.P2
EXHIBIT P4(R3(A) TRUE COPY OF THE REPLY FROM THE
APPLICANT SERVED TO HEADMISTRESS
GOVT.HIGH SCHOOL KUDAMALOOR
EXHIBIT P5 A TRUE COPY OF THE REJOINDER FILED BY
THE PETITIONER TO EXT.P4
EXHIBIT P5(A8) A TRUE COPY OF THE ORDER GO
NO.42076/G3/2010/GEN. EDN DATED
14.05.2013 ISSUED BY THE GENERAL
EDUCATION DEPARTMENT OF KERALA
GOVERNMENT
EXHIBIT P5(A9) A TRUE COPY OF THE LETTER SENT BY
HEADMISTRESS KUDAMALOOR TO THE APPLICANT
EXHIBIT P5(A10) A TRUE COPY OF GO(P) NO.185/2002/FIN
DATED 27.03.2002 ISSUED BY THE FINANCE-
PENSION(B) DEPARTMENT, STATE OF KERALA