Kerala High Court
District Medical Officer Of Health vs Mercy T.J on 27 January, 2021
Bench: Alexander Thomas, T.R.Ravi
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942
OP(KAT).No.223 OF 2020
AGAINST THE ORDER DATED 06.03.2018 IN OA NO.2008/2016 OF THE
KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1 TO 3 IN O.A:
1 DISTRICT MEDICAL OFFICER OF HEALTH,
KASARAGODE AT KANHANGAD, BALLA P.O., HOSDURG,
ANANDARSAM, KASARAGOD DISTRICT, KERALA-671 531.
2 THE ACCOUNTANT GENERAL (A & E),
THRISSUR, KERALA-680 001.
3 SUPERINTENDENT,
DISTRICT HOSPITAL, KANHANGAD, KERALA-671 313.
BY GOVERNMENT PLEADER
RESPONDENT/APPELLANT IN O.A:
MERCY T.J.
W/O.SAM JOSEPH, HEAD NURSE, DISTRICT HOSPITAL,
KANHANGAD, KASARAGOD DISTRICT, PIN-671 531, RESIDING
AT NADUVILEDATH HOUSE, KOZHAKKUNDU, BALLA P.O.,
HOSDURG, ANANDARSAM, KASARGOD DISTRICT-671 531,
KASARGOD, KERALA.
R1 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY
R1 BY ADV. SMT.N.SANTHA
R1 BY ADV. SRI.V.VARGHESE
R1 BY ADV. SRI.PETER JOSE CHRISTO
R1 BY ADV. SRI.S.A.ANAND
R1 BY ADV. SMT.K.N.REMYA
R1 BY ADV. SMT.L.ANNAPOORNA
R1 BY ADV. SHRI.VISHNU V.K.
R1 BY ADV. KUM.ABHIRAMI K. UDAY
R1 BY ADV. SHRI.KURUVILLA SABU CHRISTY
SRI.B.VINOD, SR.GP
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 27.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P (KAT) 223 of 2020
2
ALEXANDER THOMAS & T.R.RAVI, JJ.
==================================
O.P (KAT) 223 of 2020
[arising out of the order dated 06.03.2018
in O.A No.2008/2016 of the KAT, Tvm. Bench]
==================================
Dated this the 27th day of January, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The prayer in the aforecaptioned Original Petition filed under Articles 226 & 227 of the Constitution of India is as follows (see page No.9 of the paper book of this O.P) :
".................. to stay the operation and implementation of Exhibit P5 Order dated 06.03.2018 in OA No.2008/2016 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram pending disposal of the above Original Petition." "
2. Heard Sri.B.Vinod, learned Senior Government Pleader appearing for the petitioners (District Medical Officer, Accountant General & another) in the O.P/R1-R3 in the O.A and Sri.V.Varghese, learned advocate appearing for the sole respondent in the O.P / sole original applicant before the Tribunal.
3. The 1st respondent in this O.P (original applicant) had filed Ext.P-1 O.A No.2008/2016 before the Kerala Administrative Tribunal, Thiruvananthapuram Bench, with the following prayers (see page O.P (KAT) 223 of 2020 3 Nos.19 & 20 of this paper book) :
"a) set aside Annexures-A1 and A2
b) declare that this applicant is entitled to grant of increments, time bound higher grades etc. taking also into account her prior provisional service for the period from 04.01.1988 to 14.08.1992 and that the fixations of pay made in her favour from time to time including those by Annexures-A3, A4 and A5 are not liable to be altered in any manner, adverse to the applicant, that too at this distance of time.
c) direct the respondents to grant the applicant all service benefits including annual increments, time bound higher grades based thereon, taking also into account the provisional service rendered by her from 04.01.1988 to 14.08.1992, by virtue of Government decision No.2 under Rule 33, Part I KSR, as the applicant had started her regular service before the said Government decision was deleted w.e.f. 01.10.1994.
d) direct the respondents not to enforce Annexures-A1 and A2.
and
e) grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case including the costs of this Original Application."
4. The Tribunal, after hearing both sides has passed the impugned Ext.P5 final order dated 06.03.2018 in O.A No.2008/2016, whereby the impugned order of recovery has been quashed and set aside.
5. Before the original applicant had joined regular service, she had initially worked as Staff Nurse Grade-II for the period from 04.01.1988 to 14.08.1992, temporarily/provisionally under Rule 9(a)(i) O.P (KAT) 223 of 2020 4 of the Kerala State & Subordinate Services Rules (KS & SSR) Part-II. Later, the applicant had secured regular appointment as Staff Nurse Grade-II in the same department with effect from 15.08.1992. The applicant contended that in terms of the mandate contained in Government decision No.2 appended under Rule 33 Part I KSR, her provisional service should be reckoned as officiating service for the purpose of granting increments, after getting the regular appointment in the very same post. This was objected to on the purported ground that the pay scales attached to her provisional service and the subsequent regular service were different on account of pay revision, though the post in question is the same one under the same department both during the provisional service and the subsequent regular service of the applicant. Hence, the applicant was constrained to approach this Court by filling a writ petition as O.P No.6844/1997 and this Court as per Annexure-A6 judgment dated 08.09.1998 had finally disposed of the said O.P No.6844/1997, allowing the said plea of the applicant herein and quashing the impugned rejection order and directing the respondent-authorities concerned to grant the benefit available under decision No.2 appended under Rule 33 Part I KSR in O.P (KAT) 223 of 2020 5 the matter of reckoning her provisional service for the purpose of granting increment consequent to her regular service as officiating service. In that regard, it may also be relevant to note that the said Government decision No.2 appended under Rule 33 Part I KSR was subsequently deleted with effect from 01.10.1994 and the said statutory provision had remained in the statute book during the time when the applicant had her provisional service for the period from 04.01.1988 to 14.08.1992.
6. Further, it appears that the applicant had secured Leave Without Allowances (LWA) for five years, as per G.O (Rt.) No.1687/94/H&FWD dated 08.06.1994. The applicant had availed LWA only for the period from 08.06.1994 to 04.10.1995 and she had rejoined duty after the LWA on 05.10.1995. Since the applicant had gone on LWA before completion of her probation in pursuance of her regular appointment, she has to be treated as a fresh entrant into the service, when she had joined duty on 05.10.1995, as contended by the authorities concerned. However, her probation in the post of Staff Nurse Grade-II was actually completed with effect from 21.11.1997. O.P (KAT) 223 of 2020 6
7. A reading of paragraph No.3 of Annexure-A2 audit objections of the Accountant General (Audit), as per their audit enquiry No.14 would make it clear that the fixation of the applicant's pay at Rs.4,700/- with effect from 01.03.1997 was objected to by the Pay Fixation Audit Party of the Accountant General, Kerala on 07.04.2000 and the said audit objection was dropped vide O.A 3/Pay Fix/8-10 (55)/00-01/27 dated 04.06.2002 based on the reply furnished by the departmental authority concerned. It appears that the very same audit objection which was initially raised on 07.04.2000 and later dropped on 04.06.2002, has been again resurrected by the audit party of the Accountant General (Audit) in respect of the audit conducted for the period from 01.04.2015 to 31.03.2016, which resulted in the impugned Annexure-A2 audit objections rendered by the Accountant General (Audit) on 09.03.2016. Further, from the pleadings and materials on record, it appears that a copy of the audit objections as per Annexure-A2 rendered on 09.03.2016 was communicated by the Accountant General (Audit) to the departmental authority concerned on 18.04.2016. The departmental authority concerned had communicated the said audit objections as per Annexure-A2 dated O.P (KAT) 223 of 2020 7 09.03.2016 to the original applicant as per Annexure-A1 dated 22.06.2016. It is in pursuance of Annexures-A1 & A2 that the departmental authority concerned (R3 in the O.A/3 rd petitioner herein viz. the Superintendent, District Hospital, Kanhangad) has issued the impugned Annexure-A1 proceedings. It is in pursuance of Annexure- A2 audit objections rendered by the Accountant General (Audit) on 09.03.2016 that the departmental authority concerned (the Superintendent, District Hospital, Kanhangad, Kasaragod District) has issued the impugned Annexure-A1 proceedings dated 22.06.2016 ordering the recovery of an amount of Rs.4,43,193/- from the petitioner. Immediately thereafter, the applicant has filed Ext.P-1 O.A No.2008/2016 before the Kerala Administrative Tribunal, Thiruvananthapuram Bench on 21.08.2016. The Tribunal has granted interim stay of further proceedings of recovery in pursuance of the impugned Annexure-A1. It is later; that the Tribunal has finally allowed the said Ext.P1 O.A No.2008/2016 as per the impugned Ext.P5 final order rendered on 06.03.2018 in this O.A. During the pendency of the O.A, the original applicant has retired from service on 31.03.2020.
O.P (KAT) 223 of 2020 8
8. The State authorities concerned is now finally pressing the O.P (KAT) to challenge said Ext.P3 final order rendered by the Tribunal and the O.P(KAT) has been filed on 25.07.2020. In the meanwhile, the original applicant has retired from service on 31.03.2020.
9. The main reasoning given by the Tribunal for setting aside and quashing the impugned Annexure-A1 recovery proceedings is that the case on hand is fully covered by the dictum laid down by the Apex Court in the decision in State of Punjab & Ors v. Rafiq Masih (White Washer's case) [2015 (4) SCC 334 = 2014 KHC 4818]. After referring to various cases governing the field, the Apex Court in paragraph No.12 of White Washer's case supra [2015 (4) SCC 334], has issued the following orders and directions thereunder :
"It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have 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.
O.P (KAT) 223 of 2020 9
(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." The only issue before us is, as to the correctness or otherwise of the view rendered by the Tribunal, as per Annexure-A5 final order, in allowing the prayers in the present O.A. In the instant case, the original applicant was serving in the post of Staff Nurse Grade-II, which is a Group 'C'/Class-III post, at the time when the alleged mistake in pay fixation had occurred. Later, she was promoted to the post of Staff Nurse Grade-I, which again Group 'C'/Class-III post and was subsequently promoted as Head Nurse, which is again is Group 'C'/Class-III post. Later, she was promoted as Nursing Superintendent Grade-II, from which post she has retired from service on 31.03.2020. It appears that the last post in question, Nursing Superintendent Grade-II, is a post in the Group 'B'/Class-II. It appears that the original applicant was holding the post of Group 'C'/Class-III post, at the time when Ext.P5 final order was rendered by the Tribunal on 06.03.2018 in the present O.A. So it can be seen that for the vast O.P (KAT) 223 of 2020 10 majority of period, the petitioner has held the post of Group 'C'/ Class-III, in respect of the alleged mistake in the pay fixation. That apart, it can be seen from a mere reading of Annexure-A2 audit objections rendered by the Accountant General (Audit) on account of audit conducted on 09.03.2016, that the very same audit objection was the subject matter of an audit enquiry on 07.04.2000, which was duly dropped by the Accountant General (Audit) on 04.06.2002, after considering the reply affidavit furnished by the department. This aspect of the matter is crystal clear from a mere reading of paragraph No.3 of Annexure-A2. It is the very same audit objection, which was raised initially on 07.04.2000 and ultimately dropped on 04.06.2002 by none other than the Accountant General (Audit) that has again been resurrected by the audit party on 09.03.2016, as per Annexure-A2, which was resulted in Annexure-A1 proceedings of recovery dated 22.06.2016. Hence, there cannot be any doubt that the present impugned action initiated at the instance of the audit objection and as reiterated in Annexure-A1, is highly belated and there has been unexplained and inordinate delay in again resurrecting the very same objections as late as on March, 2016 and which has been acted upon by O.P (KAT) 223 of 2020 11 the departmental authority only on 22.06.2016, as per Annexure-A1.
10. Hence, we are of the considered view that the authority concerned (petitioners herein) are barred on account of their long delay and laches and acquiescence from again resurrecting the very same audit objections, which was initially raised on 07.04.2000 and ultimately dropped on 04.06.2002. So, we are of the considered view that the present impugned action resulting from Annexure-A2 and Annexure-A1 is vitiated by unreasonableness and arbitrariness. That apart, we would also broadly concur with the Tribunal that the case on hand would be broadly covered by the dictum laid down by the Apex Court in White Washer's case supra [2015 (4) SCC 334] paragraph No.12 thereof, inasmuch as, the applicant has served in Group-C/ Class-III post, till the O.A was allowed, as per the impugned final order. The learned Government Pleader has raised a contention that the applicant had given an undertaking to refund any excess amount, after the pay fixation and therefore, the exception found by the Apex Court in the abovesaid subsequent judgment rendered in the case in High Court of Punjab and Haryana and Ors. v. Jagdev Singh [2016 (14) SCC 267] would be applicable in the instant case. We are O.P (KAT) 223 of 2020 12 constrained to take the view that the said contention of the petitioners cannot be countenanced for reasons more than one. A reading of paragraph No.12 of White Washer's case supra [2015 (4) SCC 334], would make it clear that the dictum laid down therein for the benefit of low paid employees serving in Group 'D', Group 'C', etc. would come into play in any of the contingencies mentioned therein occur. Only the factual contingency covered by clause (ii) of paragraph No.12 thereof, has been modulated by the subsequent judgment of the Apex Court in Jagdev Singh's case supra [2016 (14) SCC 267]. In that regard, it will be profitable to refer to the relevant portion contained in paragraph No.7 of the judgment of the Division Bench of this Court in the case in State of Kerala v. Vinod Kumar [2020 (4) KLT 230], which reads as follows :
"7. ............................. After noticing the categories of situations set out as (i) to (v) in paragraph 18 of Rafiq Masih, the Supreme Court in Jagdev Singh held in paragraph 11 as follows:-
"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."
On a reading of both Rafiq Masih and Jagdev Singh, it is difficult for us to accept the contention of the learned Government O.P (KAT) 223 of 2020 13 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."
11. In the instant case, even if it is assumed that such an undertaking has been given by the applicant, the case would be covered by clause No.3 of paragraph No.12 of White Washer's case supra [2015 (4) SCC 334], inasmuch as, the recovery from the employee is in respect of the alleged excess payment, which is made for a period far in existence of five years before the order of recovery is issued.
12. Hence, we are of the view that the Tribunal has not committed any serious illegality or unreasonableness in having taken the view that the applicant is entitled to the beneficial directions contained in paragraph No.12 of White Washer's case supra. That apart, we are told that the agreement in question to refund the amount is only consequent to the pay fixation, whereas, the present alleged O.P (KAT) 223 of 2020 14 mistake has occurred right from the period, when the original applicant had rejoined duty, after expiry of the Leave Without Allowance period, at which point of time, she had not completed the probation and therefore, as per the Rules concerned, she should have been treated as a fresh entrant to the service and mistake occurred from that point of time. Since the mistake has occurred from that point of time, the same cannot be said to be a mistake in the pay fixation process and so, the undertaking or agreement said to have been given by the petitioner, at the time of subsequent pay fixation, cannot be of any avail in the instant case, so as to bring it within the scope of the exception that is otherwise in Jagdev Singh's case supra [2016 (14) SCC 267].
13. In the light of these aspects, we are constrained to take the view that no grounds have been made out by the petitioners herein, so as to interfere with well considered decision rendered by the Tribunal in the instant case.
14. Sri.V.Varghese, learned counsel appearing for the original applicant/respondent in the O.P would submit that though the impugned Ext.P-5 final order has been rendered in favour of the applicant by the Tribunal as early as on 16.03.2018 and though the O.P (KAT) 223 of 2020 15 applicant has retired from service as early as on 31.03.2020 and even till date, the retirement benefits have not been sanctioned and released by the petitioners herein, on account of the pendency of the present O.P by citing the ground that the last pay of the original applicant prior to her retirement can be reckoned only after the pronouncement of the final order in this O.P. If that be so, we order that the competent authority among the petitioners herein should immediately take steps to sanction and release the pensionary benefits due to the respondent/appellant in the O.A, without any further delay, reckoning the last pay, by taking into account the fact that the impugned Annexure-A1 recovery proceedings have already been set aside by the Tribunal, as per the impugned Ext.P5 rendered as early as on 06.03.2018, which order has now been upheld by this Court. Steps in that regard should be duly taken by the competent authority among the petitioners, without much delay, preferably within a period of two months from the date of production of a certified copy of this judgment.
15. We are constrained to issue the abovesaid directions, as we are told that the main ground for delaying the pension was that the last O.P (KAT) 223 of 2020 16 pay of the pensioner in this case can be correctly reckoned by the authorities, only after ascertaining, as to whether the quashment of Annexure-A1 recovery proceedings has been upheld or reversed by this Court in this O.P. With these observations and directions, the above Original Petition will stand dismissed.
Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
T.R.RAVI, JUDGE vgd O.P (KAT) 223 of 2020 17 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A PHOTOCOPY OF THE OA ALONG WITH
ANNEXURES.
ANNEXURE A1 TRUE COPY OF THE NOTE NO.659/2016 DATED
22.06.2016 OF THE 3RD RESPONDENT.
ANNEXURE A2 TRUE COPY OF THE AUDIT ENQUIRY NO.14 OF
THE AUDIT PARTY UNDER THE 2ND
RESPONDENT.
ANNEXURE A3 TRUE COPY OF THE ORDER NO.A1-292/04
DATED 31.03.2004 OF THE 3RD RESPONDENT.
ANNEXURE A4 TRUE COPY OF THE ORDER NO.(D.DIS)
A1/11782/07 OF DMO(H) KGD DATED
09.11.2007 OF THE 1ST RESPONDENT.
ANNEXURE A5 TRUE COPY OF THE PAY FIXATION STATEMENT
IN PURSUANCE OF ANNEXURE A4.
EXHIBIT P2 A PHOTOCOPY OF THE REPLY STATEMENT FILED
ON BEHALF OF THE 1ST RESPONDENT.
EXHIBIT P3 A PHOTOCOPY OF THE REJOINDER STATEMENT
OF THE RESPONDENT HEREIN.
ANNEXURE A6 TRUE COPY OF THE JUDGMENT DATED
08.09.1998 OF THE HON'BLE HIGH COURT OF
KERALA IN OP NO.6844/97-M.
EXHIBIT P4 A PHOTOCOPY OF THE REPLY STATEMENT OF
THE 2ND RESPONDENT IN THE OA.
EXHIBIT P5 A PHOTOCOPY OF THE ORDER DATED
06.03.2018 IN OA NO.2008/2016.
EXHIBIT P6 A PHOTOCOPY OF THE DECLARATION SUBMITTED
BY HER ON 23.11.2006.
EXHIBIT P7 A PHOTOCOPY OF THE DECLARATION DATED
25.07.2006.