Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURDSAY, THE 21st DAY OF JULY 2022 / 30th ASHADHA, 1944 WA NO. 869 OF 2022 AGAINST THE JUDGMENT IN WP(C) 8769/2021 OF HIGH COURT OF KERALA APPELLANT/RESPONDENT NO.1: REGIONAL CANCER CENTRE (RCC) REPRESENTED BY THE DIRECTOR, RCC, P.O.BOX 2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695 004. BY ADVS. ATHUL SHAJI ANWIN JOHN ANTONY RESPONDENTS/PETITIONER & RESPONDENT NO.2 1 GANGA DEVI.C AGED 62 YEARS, RCC- EMPLOYEE CODE 1111, TECHNICAL OFFICER (RETD) TC2/3093(1), PANACHUMOODU LANE, PATTOM P.O., THIRUVANANTHAPURAM, PIN- 695 004. 2 GOVERNMENT OF KERALA, HEALTH AND FAMILY WELFARE(J) DEPARTMENT, REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN- 695 001. BY SRI.ABDUL RAZZAK BY SRI.BIJOY CHANDRAN, GOVERNMENT PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.07.2022, ALONG WITH WA.52/2022, 670/2022 AND CONNECTED CASES, THE COURT ON 21.7.2022 DELIVERED THE FOLLOWING: :2:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURDSAY, THE 21st DAY OF JULY 2022 / 30th ASHADHA, 1944 WA NO. 52 OF 2022 AGAINST THE JUDGMENT IN WP(C) 6804/2021 OF HIGH COURT OF KERALA APPELLANT/WRIT PETITIONER: USHA J. EMPLOYEE CODE 1112, TECHNICAL OFFICER (RETD.), THAZHATHAYILMRA 40, MARAPPALAM, PATTOM P.O., THIRUVANANTHAPURAM - 695 004. BY ADV S.ABDUL RAZZAK RESPONDENTS: 1 REGIONAL CANCER CENTRE(RCC) REPRESENTED BY THE DIRECTOR, RCC, P.O.BOX 2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM - 695 011. 2 GOVERNMENT OFKERALA HEALTH& FAMILY WELFARE (J) DEPARTMENT, REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. BY ADVS. ATHUL SHAJI BY SRI.BIJOY CHANDRAN, GOVERNMENT PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.07.2022, ALONG WITH WA.869/2022 AND CONNECTED CASES, THE COURT ON 21.7.2022 DELIVERED THE FOLLOWING: :3:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURDSAY, THE 21st DAY OF JULY 2022 / 30th ASHADHA, 1944 WA NO. 670 OF 2022 AGAINST THE JUDGMENT IN WP(C) 12885/2021 OF HIGH COURT OF KERALA APPELLANT/RESPONDENT NO.1: REGIONAL CANCER CENTRE (RCC) REPRESENTED BY THE DIRECTOR, RCC, P.O.BOX 2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695011 BY ADV ATHUL SHAJI RESPONDENTS/PETITIONER & RESPONDENT NO,2 1 PRASANNA KUMARI.S EMPLOYEE CODE 1085, CRA 105, KAMBIKKAKAM, ANAYARA.P.O., THIRUVANANTHAPURAM, PIN- 695 029. 2 GOVERNMENT OF KERALA, HEALTH AND FAMILY WELFARE(J) DEPARTMENT, REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN- 695 001. BY SRI.ABDUL RAZZAK THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.07.2022, ALONG WITH WA.869/2022 AND CONNECTED CASES, THE COURT ON 21.7.2022 DELIVERED THE FOLLOWING: :4:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURDSAY, THE 21st DAY OF JULY 2022 / 30th ASHADHA, 1944 WA NO. 676 OF 2022 AGAINST THE JUDGMENT IN WP(C) 6804/2021 OF HIGH COURT OF KERALA APPELLANT/RESPONDENT NO.1: REGIONAL CANCER CENTRE (RCC) REPRESENTED BY THE DIRECTOR, RCC, P. O. BOX 2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695011. BY ADV ATHUL SHAJI RESPONDENTS/PETITIONER & RESPONDENT NO.2: 1 USHA J. AGED 61 YEARS EMPLOYEE CODE 1112, TECHNICAL OFFICER (RETD)., THAZHATHAYIL, MRA 40, MARAPPALAM, PATTOM P. O., THIRUVANANTHAPURAM, PIN- 695 004. 2 GOVERNMENT OF KERALA HEALTH AND FAMILY WELFARE (J) DEPARTMENT, REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN- 695 001. BY SRI.ABDUL RAZZAK THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.07.2022, ALONG WITH WA.869/2022 AND CONNECTED CASES, THE COURT ON 21.7.2022 DELIVERED THE FOLLOWING: :5:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURDSAY, THE 21st DAY OF JULY 2022 / 30th ASHADHA, 1944 WA NO. 680 OF 2022 AGAINST THE JUDGMENT IN WP(C) 12165/2021 OF HIGH COURT OF KERALA APPELLANT/RESPONDENT NO.1: REGIONAL CANCER CENTRE (RCC) REPRESENTED BY THE DIRECTOR, RCC, P.O.BOX 2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695011. BY ADVS. ATHUL SHAJI ANWIN JOHN ANTONY RESPONDENTS/PETITIONER & RESPONDENT NO.2: 1 GEETHA S., AGED 62 YEARS, EMPLOYEE CODE 1086, NURSING SUPERINTENDENT, GR.11, DIVYASREE-TC 13/193, MOSQUE LANE HOUSE NO.68, KESAVADASAPURAM, PATTOM P. O., THIRUVANANTHAPURAM, PIN- 695 004. 2 GOVERNMENT OF KERALA HEALTH AND FAMILY WELFARE(J) DEPARTMENT, REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN- 695 001. BY SRI.ABDUL RAZZAK THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.07.2022, ALONG WITH WA.869/2022 AND CONNECTED CASES, THE COURT ON 21.7.2022 DELIVERED THE FOLLOWING: :6:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURDSAY, THE 21st DAY OF JULY 2022 / 30th ASHADHA, 1944 WA NO. 761 OF 2022 AGAINST THE JUDGMENT IN WP(C) 15196/2021 OF HIGH COURT OF KERALA
APPELLANT/RESPONDENT NO.1: REGIONAL CANCER CENTRE (RCC) REPRESENTED BY THE DIRECTOR, RCC, P.O.BOX 2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695011, BY ADVS. ATHUL SHAJI ANWIN JOHN ANTONY RESPONDENT/PETITIONER & RESPONDENTS 2 & 3: 1 SUKUMARAN NAIR R,AGED 60 YEARS S/O.R.RAGHAVAN PILLAI, KUTTARAVILAKATHU KUDAJADRIYIL HOUSE PIRAPPANCODE.P.O., THIRUVANANTHAPURAM, PIN- 695 029. 2 EXECUTIVE COMMITTEE, REGIONAL CANCER CENTRE, REPRESENTED BY ITS CHAIRMAN, RCC, MEDICAL COLLEGE CAMPUS, P.B.NO.2417, MEDICAL COLLEGE.P.O., THIRUVANANTHAPURAM-695 011.
3 STATE OF KERALA REPRESENTED BY ITS SECRETARY, HEALTH AND FAMILY WELFARE-DEPARTMENT, :7: SECRETARIAT, THIRUVANANTHAPURAM-695 011. BY ADVS. SRI.GIKKU JACOB (B/O) GIKKU JACOB THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.07.2022, ALONG WITH WA.869/2022 AND CONNECTED CASES, THE COURT ON 21.7.2022 DELIVERED THE FOLLOWING: :8:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURDSAY, THE 21st DAY OF JULY 2022 / 30th ASHADHA, 1944 WA NO. 762 OF 2022 AGAINST THE JUDGMENT IN WP(C) 26072/2020 OF HIGH COURT OF KERALA APPELLANTS/RESPONDENTS 2 & 3: 1 REGIONAL CANCER CENTRE (RCC) REPRESENTED BY THE DIRECTOR, RCC, P.O.BOX 2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695011. 2 DIRECTOR, REGIONAL CANCER CENTRE, P.O.BOX 2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695011. BY ADV ATHUL SHAJI RESPONDENTS/PETITIONER & RESPONDENT NO.1:
1 DEVARAJA PANICKER K., AGED 60 YEARS, S/O.K.N.KUNJU PANICKER, HOSPITAL ASSISTANT (RETIRED), REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM, RESIDING AT 'GOKULAM", TC 8/702-2 HOUSE NO.A-70, T.V.NAGAR, THIRUMALA, THIRUVANANTHAPURAM, PIN- 695 006. 2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT HEALTH AND FAMILY WELFARE(J) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN- 695 001. 3 THE CONTROLLER OF FINANCE, REGIONAL CANCER CENTRE, MEDICAL COLLEGE.P.O., THIRUVANANTHAPURAM-695 011. 4 THE ACCOUNTS OFFICER, :9:
REGIONAL CANCER CENTRE, MEDICAL COLLEGE.P.O., THIRUVANANTHAPURAM - 695 011. 5 THE EXECUTIVE COMMITTEE OF REGIONAL CANCER CENTRE, REPRESENTED BY ITS CHAIRMAN, REGIONAL CANCER CENTRE, MEDICAL COLLEGE.P.O., THIRUVANANTHAPURAM - 695 011. BY ADVS. SRI.D.KISHORE (B/O) D.KISHORE MEERA GOPINATH R.MURALEEKRISHNAN (MALAKKARA) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.07.2022, ALONG WITH WA.869/2022 AND CONNECTED CASES, THE COURT ON 21.7.2022 DELIVERED THE FOLLOWING: :10:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURDSAY, THE 21st DAY OF JULY 2022 / 30th ASHADHA, 1944 WA NO. 790 OF 2022 AGAINST THE ORDER IN WP(C)(C) 3294/2021 OF HIGH COURT OF KERALA APPELLANTS/RESPONDENT NO.2 & 3: 1 REGIONAL CANCER CENTRE (RCC) REPRESENTED BY THE DIRECTOR, RCC, P.O.BOX 2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695011. 2 DIRECTOR, REGIONAL CANCER CENTRE, P.O.BOX 2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695011. BY ADVS. ATHUL SHAJI ANWIN JOHN ANTONY RESPONDENTS/PETITIONER & RESPONDENT NO.1: 1 JOHNSON X RETIRED CASHIER-CUM-RECEPTIONIST, REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM, PIN- 695 011), 'PUNARTHAM', ST.JUDE NAGAR, PERUKAV.P.O., THIRUVANATHAPURAM, PIN: 695 572. 2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT HEALTH AND FAMILY WELFARE(J) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN- 695 001. BY ADV S.P ARAVINDAKSHAN PILLAI(B/O) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.07.2022, ALONG WITH WA.869/2022 AND CONNECTED CASES, THE COURT ON 21.7.2022 DELIVERED THE FOLLOWING: :11:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURDSAY, THE 21st DAY OF JULY 2022 / 30th ASHADHA, 1944 WA NO. 791 OF 2022 AGAINST THE ORDER IN WP(C) 23086/2020 OF HIGH COURT OF KERALA APPELLANTS/RESPONDENTS 2 & 3: 1 REGIONAL CANCER CENTRE (RCC) REPRESENTED BY THE DIRECTOR, RCC, P.O.BOX 2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM - 695011. 2 DIRECTOR, REGIONAL CANCER CENTRE, P.O.BOX 2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM - 695011. BY ADV ATHUL SHAJI RESPONDENTS/PETITIONER & RESPONDENT NO.1: 1 SARALADEVI P.G (RETIRED ASSISTANT ACCOUNTS OFFICER REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM, PIN - 695011), 'ANJANEYAM', KALLIYOOR P.O, VALLAMCODE, THIRUVANANTHAPURAM, PIN - 695042. 2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE (J) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001. BY ADV S.P ARAVINDAKSHAN PILLAI(B/O) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.07.2022, ALONG WITH WA.869/2022 AND CONNECTED CASES, THE COURT ON 21.7.2022 DELIVERED THE FOLLOWING: :12:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURDSAY, THE 21st DAY OF JULY 2022 / 30th ASHADHA, 1944 WP(C) NO. 23086 OF 2020 PETITIONER: SARALADEVI P.G (RETIRED ASSISTANT ACCOUNTS OFFICER) REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM,PIN-695011), 'ANJAYANEYAM',KALLIYOOR.P.O, VALLAMCODE,THIRUVANANTHAPURAM, PIN-695042. BY ADVS. S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.K.N.REMYA SMT.L.ANNAPOORNA SHRI.VISHNU V.K. KUM.ABHIRAMI K. UDAY RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,PIN-695001. 2 REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM,PIN-695011, REPRESENTED BY ITS DIRECTOR. 3 DIRECTOR, REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, :13: THIRUVANANTHAPURAM, PIN-695011. BY SRI.ATHUL SHAJI, SC, REGIONAL CANCER CENTRE (RCC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.07.2022, ALONG WITH WA.869/2022, THE COURT ON 21.07.2022 DELIVERED THE FOLLOWING: :14:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURDSAY, THE 21st DAY OF JULY 2022 / 30th ASHADHA, 1944 WP(C) NO. 3294 OF 2021 PETITIONER: JOHNSON X (RETIRED CASHIER -CUM -RECEPTIONIST, REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM, PIN-695011), PUNARTHAM, ST. JUDE NAGAR, PERUKAVU P O, THIRUVANANTHAPURAM, PIN-695572. BY ADVS. S.P.ARAVINDAKSHAN PILLAY N.SANTHA V.VARGHESE PETER JOSE CHRISTO S.A.ANAND K.N.REMYA L.ANNAPOORNA VISHNU V.K. ABHIRAMI K. UDAY RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT , THIRUVANANTHPAURAM, PIN-695001. 2 REGIONAL CANCER CENTRE MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM, PIN-695011, REPRESENTED BY ITS DIRECTOR. 3 DIRECTOR REGIONAL CANCER CENTRE, :15: MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM, PIN-695011. BY ADV SRI.ATHUL SHAJI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.07.2022, ALONG WITH WA.869/2022, THE COURT ON 21.07.2022 DELIVERED THE FOLLOWING: :16: “C.R.” A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ ------------------------------------------------------------------ WA Nos.869, 670, 676, 680, 761, 762 ,790, 791 & 52 of 2022 & WP(C)Nos. 23086 of 2020 and 3294 of 2021 -------------------------------------------- Dated this the 21st day of July, 2022
JUDGMENT
Mohammed Nias.C.P. J. These writ appeals are filed challenging the judgments of the learned single Judge that declared that the recovery effected by the appellant-Regional Cancer Centre (for short 'RCC') from its employees alleging erroneous payment in the fixation of pay was illegal. Writ Appeal Nos.869/2022, 670/2022, 676/2022, 680/2022, challenging the judgment which declared that recovery from the retirement benefits granted to the writ petitioners was illegal, with a further direction to release the amounts recovered from their gratuity and leave surrender.
2. The facts, leading to the above cases are as follows:-
The writ petitioners in all these cases are retired employees of the Regional Cancer Centre (RCC), all of whom were granted the assessment promotions on completion of 5 and 8 years, under the Time Bound Grade Promotion (TBGP Scheme). The employees were :17: also given promotion under the Flexible Complementing and Ladder Promotion (FCP and LP) which replaced the TBGP Scheme. The petitioners were thus promoted and granted enhanced pay on the basis of such promotion. While so, the pay scale of the employees of the RCC was made at par with the Sree Chithira Tirunal Institute of Medical Sciences and Technology (SCTIMST). The consequential pay revision was also ratified by the Government as per order dated 17.06.2000 with effect from 01.01.2007. The 6 th Central Pay Band
(CPC) was implemented for the non-academic staff in the RCC as per Government Order dated 3.11.2009 and monetary benefits were also made available from 01.01.2007. The Government also passed an
order dated 08.01.2004 providing for notional fixation of pay to
protect the service increments earned and accordingly the pay scales of the employees were revised.
3. Thereafter, a Three Member Committee was appointed to
find out the anomalies in the fixation of the pay scale of the employees in the SCTIMST and RCC and to suggest corrective measures. The Committee suggested review of the assessment grade promotions granted to the non-academic staff and to fix their pay in the corresponding revised scale of pay, without granting the benefit of revised pay scales effected during the period from 01.03.1997 to 21.12.2005. Although the appellant issued proceedings based on the :18: recommendations of the Committee, the same was not implemented as the appellant itself had sought a review of the recommendations. While so, the writ petitioners superannuated on various dates. After their retirement, provisional pension sanction orders were issued based on the provisional pay fixation order in tune with the Three Member Committee's recommendations which had the effect of lowering the pay scale of the employees and ignoring the TBGP granted for the 10 years completed service and as a consequence the fixation made as per the 6th Pay Commission Pay Band was stated to be wrong and the basic pay of the employees was sought to be lowered. The appellant also accorded sanction for recovering amounts allegedly paid in excess to the employees, all of whom by the time had retired. The recovery was directed to be effected from the petitioners' retiral benefits. It was these actions of lowering the scale, and effecting the recovery of the amounts alleging that they were in excess that were challenged in the writ petitions.
4. The appellant-RCC resisted the writ petitions contending
that the petitioners were only entitled to the correct and eligible pay and that they were mistakenly granted benefits, which they were not entitled to going by the Three Member Committee's report that directed to rectify. The same was done which resulted in recovery of the excess amounts paid besides resulting in a re-fixation even in the :19: last drawn pay. The appellant also contended that the some of the petitioners had executed a bond undertaking that their liability, if any, noted during the audit be recovered from their leave surrender, gratuity and pension benefits.
5. The learned single Judge who considered the writ
petitions found that no steps were taken against the petitioner while they were in service and therefore the recovery of the alleged excess salary from the writ petitioner's gratuity and monetary component effected was held to be not justified. In holding so the judgment of the Supreme Court in State of Punjab v. Rafiz Masih (White Washer) [(2012) 4 SCC 334] and the decision of this Court in State of Kerala v. Suresh Chandran [2021 (3) KLT OnLine 1117] that held that the re-fixation of the pay after retirement as illegal was relied upon. The learned single Judge also found that the writ petitioners were not afforded an opportunity of hearing before revising their pay and on these grounds the writ petitions were allowed.
6. WA Nos.869 /2022, 670/2022, 676/2022, 680/2022,
2022 is filed by the writ petitioner, a retired employee challenging that part of the judgment in WP(C) No.6804 of 2021 which granted liberty to the RCC to re-fix the pay with notice. WA Nos. 791/2022 :20: and 790/2022 were filed against the interim order granted in WP(C) Nos. 23086 of 2020 and 3294 of 2021, which only stayed the recovery, but allowed the appellant to continue the process of re-fixation. Since the issues to be decided were identical, WP(C) Nos. 23086 of 2020 and 3294 of 2021 which led to WA Nos.790 of 2022 and 791 of 2022 were also called for to be heard along with the writ petitions.
7. We have heard Sri. Athul Shaji, Sri.Abdul Razzak and
Sri.S.P.Aravindakshan Pillai and the learned counsel for the appellants and Sri.Bijoy Chandran, the learned Government Pleader for the respondent-State and Sri.D.Kishore.
8. Learned counsel for the appellant-RCC argues that the
payments made to the employees while in service were wrong as found by the Committee constituted to look into the anomalies and all that the appellant did was to recover the excess pay given to which they were not entitled. It is also alleged that the employees were aware of the fact that they were drawing excess pay. It is also argued that the decision of the Apex Court in High Court of Punjab and Haryana and others v. Jagdev Singh (2016 KHC 6515) will apply as some of the writ petitioners had executed indemnity bond undertaking to re-pay any excess payment. Since the appellant had only corrected the anomaly that occurred for which they had the :21: power, their action could not be faulted. In such circumstances, it is argued that the decision in Rafiq Masih (supra) will not apply to the writ petitioners while the decision in Jagdev Singh's (supra) and the decision in Chandi Prasad Uniyal v. State of Uttarakhand and others [2012(8) SCC 417] will apply.
9. Learned counsel for the respondents/writ petitioner
argues that the entire action of the RCC in attempting to recover the alleged excess payments after their retirement is bad and cannot be permitted. The appellants had the right to get their pay and terminal benefits fixed on the basis of the last drawn pay. It is their submission that the promotion and the grade pay given were in order and on the basis of the then existing regulations and there cannot be any excess payment as alleged by the appellant. Thus, the indefeasible substantive right obtained by the employees on the basis of the then existing schemes and regulations cannot be altered to their detriment, much less after their retirement. It is their further submission that no notice was ever issued to them before the alleged re-fixation or while lowering their pay scale and that on their superannuation, the employer employee relationship comes to an end and the right to receive pension is a crystallized right as on the date of superannuation on the basis of the pay that existed on that day. As a consequence it is argued that the appellants could not have tinkered :22: with the last drawn pay and consequently the liberty granted by the learned single Judge to the appellant to re-fix the pay with notice is clearly illegal.
10. It is also pointed out on behalf of the respondents that
the revision of their pay from 1991 onwards is ordered that too after their superannuation and that has a deleterious effect on their retiral benefits such as monthly pension, gratuity, surrender value of earned leave etc., and recovery of such amounts is plainly illegal and arbitrary apart from being totally inequitable. It is their specific case that employees were never given any amount in excess of their actual entitlement. The action of the respondents in reducing the pay and allowances as aforesaid and without notice is violative of Article 14, 16, 21 and 300A of the Constitution of India, besides being totally against all principles of natural justice, is the further submission.
11. Having considered the rival submissions, we are of
the firm view that the action of the appellant in re-fixing the pay and attempting to recover the amounts on the basis of unilateral fixation done without notice to the retired employees is plainly illegal and that part of the judgment of the learned single Judge calls for no interference. The reduction in pay and other retiral benefits without notice vitally affects their pecuniary rights and no action could not :23: have been taken without putting them on notice. By no stretch of imagination can the employer be conceded the power to lower the last drawn pay after superannuation. We declare that the said action to be arbitrary, unfair and unreasonable.
12. As regard the contention of the learned counsel for
the appellants that steps were taken to rectify the anomaly on the basis of the findings of the Three member Committee and this was known to the employees and the same could not be implemented because of the resistance on the part of the employees cannot be accepted at all in the absence of any material to substantiate the same. It is not in dispute that proceedings for lowering the pay scale and the last drawn pay which as a consequence affect the other payments due on superannuation were all made after the date of retirement. Learned counsel for the appellant argues on the basis of the judgment in Jagdev Singh (supra) that some of the employees had given undertaking and therefore recovery from them cannot be stalled on the basis of the judgment in Rafiq Masih (supra). We cannot agree with the said submission. The appellant cannot unilaterally decide that the pay granted to the petitioners while in service or any benefit given to the employee while working is wrong without putting the employee to notice. These are cases where the employees assert that they were given only the pay and allowances :24: due to them for the service they rendered and that they are not in receipt of anything in excess. That apart the undertakings obtained from the petitioner was much later in point of time, and not while sanctioning the fragments allegedly made in excess.
13. The dispute on the actual entitlement ought to have
been decided before the retirement when the employer employee relationship subsisted and not thereafter. Since the same was not done, for all purposes the last drawn pay must be reckoned. We have already considered the issue of recovery of the excess payments wrongly paid in our judgment in WA No.310 of 2022, where after considering the decisions in Rafiq Masih and Chandi Prasad Uniyal (supra) it was held that although the employer did have the right to determine and recover excess payments made by mistake or negligence, the question of recovery had to be considered on equitable grounds particularly when it is from Class III or IV employees. In the instant case since no steps were taken before the retirement of the employees, the appellant cannot be permitted to do so relying on the judgment in Chandi Prasad Uniyal (supra). In the present case, the principles noticed in Rafiq Masih (supra) are squarely applicable as rightly held by the learned single Judge and permitting a recovery in such cases would be grossly inequitable. Since we have already held that such a course is impermissible, the :25: direction of the learned single Judge granting liberty to the appellant- RCC to re-fix the pay with notice to the employees has to be set aside.
14. It is trite that on termination of the employment, the
employer loses the disciplinary control over the employee and their legal relationship comes to an end except where it is so authorised by the relevant rules. We are also in complete agreement with the
judgment of this Court in Suresh Chandran (supra), where a
coordinate Bench has held that the re-fixing of the pay after retirement and to recover excess the amount allegedly paid to the employee from his terminal benefits based on a rectification committee report, is arbitrary and unreasonable and in violation of the principles of natural justice. Since we have already held that the recovery itself is bad in the instant cases, it follows that the last drawn pay of the employees cannot be altered/lowered and no re- fixation is permissible.
15. The decision in Jagdev Singh (supra) relied on by
the appellant is clearly distinguishable as that was a case where the officer while opting for the revised pay scale contemporaneously furnished an undertaking to the effect that he would be liable to re- :26: fund any excess payment to him and therefore he was bound by the undertaking. The said decision therefore cannot have any application in the facts of the present case. Recovery in the instant case, as stated earlier, is completely barred going by the principles in Rafiq Masih (supra) more so, as in this case the argument of the appellant that there has been wrong payment made itself is thoroughly disputed by the employees. The result of our discussion leads to the following conclusions:-
(1) It is declared that the appellant-RCC is not entitled to recover any amount as excess payments allegedly paid to the writ petitioners from their retiral benefits.
(2) We also declare that the RCC is not entitled to re-fix the pay of its employees by altering or lowering the last drawn pay after their superannuation.
(3) The retiral benefits or the amounts withheld from the writ
petitioners will be paid to them within a period of six weeks from today, failing which it will carry an interest at the rate 6% from the date it is due till actual payment. Accordingly, we dismiss WA Nos. 869 /2022, :27: allow WA No.52 of 2022. We also allow WA Nos.790 of 2022 and 791 of 2022 as well as WP(C) Nos. 23086 of 2020 and 3294 of 2021, accordingly. Sd/- A.K.JAYASANKARAN NAMBIAR, JUDGE Sd/- MOHAMMED NIAS C.P., JUDGE dlk 15.7.2022 :28: APPENDIX OF WA 52/2022 PETITIONER'S EXHIBITS
EXHIBIT P1 PHOTOCOPY OF PROVISIONAL PENSION ORDER
DATED NIL AND ISSUED IN JUNE 2020 EXHIBIT P2 PHOTOCOPY OF PETITIONER'S REPRESENTATION DATED 28.9.2020 TO IST RESPONDENT. EXHIBIT P3 PHOTOCOPY OF PROMOTION MAP ORDER DATED 21.01.1991 EXHIBIT P4 PHOTOCOPY OF 2ND MAP ORDER DATED 18.5.1994 EXHIBIT P5 PHOTOFOPY OF TBGP CIRCULAR DATED 18.5.1994
EXHIBIT P6 PHOTOCOPY OF GRADE PROMOTION ORDER
NO.67/96 DATED NIL 1996 EXHIBIT P7 PHOTOCOPY OF G.O.(MS)NO.148/2000/H&FW DATED 17.6.2000
EXHIBIT P8 PHOTOCOPY OF PAY SCALE REVISION ORDER
NO.5270/FD/RCC DATED 28.7.2000 EXHIBIT P9 PHOTOCOPY OF PAY FIXATION ORDER DATED 14.11.2000 WITH SERVICE BOOK ENTRY EXHIBIT P10 PHOTOCOPY OF FCP ORDER NO.786/PROM/2006 DATED 31.01.2006 BY R1 EXHIBIT P11 PHOTOCOPY OF THE PAY FIXATION ORDER DATED 3.4.2006 EXHIBIT P12 PHOTOCOPY OF G.O.(MS) 11/2014 DATED 8.1.2014
EXHIBIT P13 PHOTOCOPY OF PAY FIXATION ORDER
NO.1112ADMN.IV/2016/RCC DATED 5.12.2006 EXHIBIT P14 PHOTOCOPY OF GO(MS)NO.382/2009 H&FWD DATED 3.11.2009 EXHIBIT P14A PHOTOCOPY OF PAY FIXATION STATEMENT DATED 1.12.2009 BASED ON TMC REPORT EXHIBIT P15 PHOTOCOPY OF THE IST RESPONDENT'S REPORT DATED 7.2.2017 TO 2ND RESPONDENT EXHIBIT P16 PHOTOCOPY OF IST RESPONDENT'S REPORT DATED 14.01.2020 TO 2ND RESPONDENT. EXHIBIT P17 PHOTOCOPY OF 2ND RESPONDENT'S LETTER DATED 9.6.2020 EXHIBIT P18 PHOTOCOPY OF REPRESENTATION DATED 11.11.2020 & AD EXHIBIT P19 PHOTOCOPY OF PROVISIONAL PAY FIXATION :29:
ORDER NO.RCC/769/2020-FINC DATED
23.9.2020 EXHIBIT P20 PHOTOCOPY OF NOTE NO.RCC/769/2020 FIN-E DATED 2.1.2021-GRATUITY EXHIBIT P21 PHOTOCOPY OF NOTE NO.RCC/592/2020 FIN-E DATED 2.1.2021 FOR LEAVE SURRENDER EXHIBIT P22 PHOTOCOPY OF IST RESPONDENT'S RECOVERY STATEMENT DATED 7.1.2021 EXHIBIT P23 PHOTOCOPY OF GO(MS)NO.76/2021/H&FWD DATED 26.2.2021 :30: APPENDIX OF WP(C) 23086/2020 PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER NO.2970/98/ADMN/I/RCC DATED 03.06.1998 OF THE 3RD RESPONDENT. EXHIBIT P2 TRUE COPY OF THE G.O.(MS)N.148/2000/H&FWD DATED 17.06.2020. EXHIBIT P3 TRUE COPY OF G.O.(P)NO.382/2009/H&FWD DATED 03.11.2009. EXHIBIT P4 TRUE COPY OF G.O.(P)NO.11/2014/H&FWD DATED 08.01.2014. EXHIBIT P5 TRUE COPY OF THE G.O.(RT)NO.869/2012/H&FWD DATED 16.03.2012. EXHIBIT P6 TRUE COPY OF THE PAY SLIP OF THE PETITIONER FOR THE MONTH OF MAY 2019. EXHIBIT P7 TRUE COPY OF THE ORDER NO.RCC/66/2020/-ADMN6 DATED 06.02.2020 OF THE 3RD RESPONDENT. EXHIBIT P8 TRUE COPY OF THE FIXATION STATEMENT NO.RCC/622/2020-FIN C DATED 03.07.2020 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P9 TRUE COPY OF THE PROVISIONAL PENSION SANCTION
ORDER NO.NIL DATED NIL OF THE 3RD RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE REVISED PROVISIONAL PENSION SANCTION ORDER ALONG WITH THE ATTACHED CALCULATION OF ARREARS OF PENSION OF THE PETITIONER. EXHIBIT P11 TRUE COPY OF THE NOTE NO.RCC/622/2020-FIN-E DATED 06.07.2020 OF THE 3RD RESPONDENT. EXHIBIT P12 TRUE COPY OF THE NOTE NO.RCC/622/2020/FIN-E DATED 06.07.2020 OF THE 3RD RESPONDENT. EXHIBIT P13 TRUE COPY OF THE AUDIT REPORT NO.SGS 61/PARTY III DATED 06/12/2018. RESPONDENTS EXHIBITS EXHIBIT R2(a) TRUE COPY OF THE IDEMNITY BOND EXECUTED BY THE PETITOINER WITH THE RCC EXHIBIT R2(b) TRUE COPY OF THE GOVERNMENT ORDER G.O. (RT)3086/97/H&FWD DATED 11.8.1997 :31: EXHIBIT R2(C) TRUE COPY OF THE GOVERNMENT ORDER G.O.
(RT) 1095/98/H&FWD DATED 30.4.1998
EXHIBIT R2(d) TRUE COPY OF THE MOA OF THE 2ND RESPONDENT. EXHIBIT R2(e) TRUE COPY OF THE THREE MEN COMMITTEE REPORT (RECOMMENDATIONS ON THE ONE-MAN COMMISSION REPORT OF PAY REVISION, 1997) DATED 16.12.2006 EXHIBIT R2(f) TRUE COPY OF THE ORDER NO.P & A.1/X/SCTIMST/2003 DATED 15.12.2003 OF SCTIMST :32: APPENDIX OF WP(C) 3294/2021 PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER NO.2970/98//ADMN/I/RCC DATED 03.06.1998 OF THE 3RD RESPONDENT. EXHIBIT P2 TRUE COPY OF THE GO (MS) NO. 148/2000/H & FWD DATED 17/06/2000. EXHIBIT P3 TRUE COPY OF THE GO (MS) NO. 382/2009/H & FWD DATED 03.11.2009. EXHIBIT P4 TRUE COPY OF THE GO (MS) NO.11/2014/H & FWD DATED 08.01.2014. EXHIBIT P5 TRUE COPY OF THE GO (RT) NO869/2012/H & FWD DATED 16.03.2012. EXHIBIT P6 TRUE COPY OF PAY SLIP OF THE PETITIONER FOR THE MONTH OF APRIL 2019. EXHIBIT P7 TRUE COPY OF THE PROVISIONAL PENSION SANCTION
ORDER DATED 29/05/2020 ISSUED BY THE 3RD
RESPONDENT. EXHIBIT P8 TRUE COPY OF THE ORDER NO RCC/691/2020-FIN C DATED 19/08/2020. EXHIBIT P9 TRUE COPY OF THE NOTE NO. RCC/691/2020-FIN- E DATED 14/10/2020. EXHIBIT P10 TRUE COPY OF THE NOTE NO. RCC/691/2020-FIN- E DATED 14/10/2020. EXHIBIT P11 TRUE COPY OF THE ORDER/FILE NO.RCC/691/2020- FIN DATED NIL OF THE 3RD RESPONDENT. EXHIBIT P12 TRUE COPY OF THE ORDER NO. RCC/349/2020-ADMN2 DATED 29/05/2020 OF THE 3RD RESPONDENT.