IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 WP(C).No. 10767 of 2006(S) -------------------------- AGAINST THE ORDER IN O.A. No. 816 of 2004 dt.13.3.2006 PETITIONER(S): --------------- 1. S.GANESAN, AGD 33 YEARS, S/O.SADASIVAN NAIR, GROUP.D. OFFICE OF THE DIRECTOR OF ACCOUNTS, POSTAL, TRIVANDRUM, RESIDING AT K.P. 654-A, SIVALAYAM, V.V.NAGAR, N.C.C.ROAD, TRIVANDRUM 5. 2. S.HARIKUMAR, AGED 35 YEARS, S/O.K.SUKUMARAN GROUP -D, OFFICE OF THE DIRECTOR OF ACCOUNTS, POSTAL, TRIVANDRUM RESIDING AT BHAVA VILAS, TC 15/127, ALTHARA NAGAR, TRIVANDRUM 10. 3. A.N. SATHEESH KUMAR, AGED 41 YEARS, S/O.M.R.NARAYANAN NAIR, GROUP D, OFFICE OF THE DIRECTOR OF ACCOUNTS POSTAL, TRIVANDRUM, RESIDING AT THEKKEVILAKATHU VEEDU, ATTUKAL, TC 22/1005, MANACAUD, TRIVANDRUM 9. 4. T. MANOHARAN, AGED 47 YEARS, S/O.P.THANKAPPAN PILLAI, GROUP -D, OFFICE OF THE DIRECTOR OF ACCOUNTS POSTAL TRIVANDRUM, REISDING AT KEEZHEKATHU VEEDU, KANNAMOOLA, MEDICAL COLLEGE P.O. TRIVANDRUM 11. 5. G. SUDHAKARAN NAIR, AGED 42 YEARS, S/O.K.G.GANGADHARAN NAIR, GROUP D, OFFICE OF THE DIRECTOR OF ACCOUNTS POSTAL, TRIVANDRUM, RESIDING AT MEKKETHIL VEEDU, TC 6/124, TRIVANDRUM 13. 6. V.M. SATHEESH KUMAR, AGED 41 YERS, S/O.VASUDEVAN NAIR, GROUP D, OFFICE OF THE DIRECTOR OF ACCOUNTS, POSTAL, TRIVNDRUM, RESODOMG AT ASWATHI MELAMCODE, NEMAM, TRIVANDRUM. 7. A. MOHANKUMAR, AGED 38 YEARS, S/O.APPU, GROUP D, OFFFICE OF THE DIRECTOR OF ACCOUNTS, POSTAL, TRIVANDRUM, RESIDING AT THANAL, KURUMI ROAD, SANTHIVILA, NEMOM, TRIVANDRUM.20. 8. P.BINU, AGED 36 YEARS, S/O.P.PARAMESWARAN NAIR, GROUP D, OFFICE OF THE DIRECTOR OF ACCOUNTS, POSTAL, TRIVANDRUM, RESIDING AT MADHURI NIVAS, 28/109, KAITHAMUKKU, TRIVANDRUM 24. BY ADV. SRI.M.A.SHAFIK RESPONDENT(S): --------------- 1. THE SENIOR ACCOUNTS OFFICER, ADMINISTRTION II, OFFICE OF THE DIRECTOR OF ACCOUNTS POSTAL, TRIVANDRUM. 2. THE DIRECTOR OF ACCOUNTS (POSTAL), KERALA CIRCLE, TRIVANDRUM. 3. THE CHIEF POST MASTER GENERAL, KERALA CIRCLE, TRIVANDRUM. 4. THE DIRECTOR (T & E) DEPARTMENT OF POSTS, DAK BHAVAN, NEW DELHI 110 001. 5. THE DIRECTOR GENERAL, DEPARTMENT OF POSTS,. NEW DELHI. 6. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPRTMENT OF POSTS, NEW DELHI. ADV. SRI.D.SOMASUNDARAM, ADDL.CGSC SRI.P.PARAMESWARAN NAIR, ASST. SOLICITOR GENERAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/03/2009, THE COURT ON 11/03/2009 DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXTS: EXT.P1 PHOTOCOPY OF THE O.A. NO.816/04 FILED BEFORE THE C.A.T. EXT.P2 PHOTOCOPY OF THE REPLY STATEMENT FILED BEFORE THE C.A.T. IN O.A. 816/04. EXT.P3 PHOTOCOPY OF THE REJOINDER FILED IN O.A. 816/2004 BEFORE THE C.A.T. EXT.P4 PHOTOCOPY OF THE ADDL. REPLY STATEMENT FILED IN O.A. 816/04. EXT.P5 PHOTOCOPY OF THE ADDL. REJOINDER FILED IN O.A. 816/04. EXT.P6 TRUE COPY OF ORDER DT.13.3.06 IN OA 816/04. RESPONDENTS' EXTS: EXT.R1(a) TRUE COPY OF MEMO DT.26.10.2004 ISSUED TO THE PETITIONERS. EXT.R1(b) TRUE COPY OF ORDER DT.14.7.2004 ISSUED BY THE DEPARTMENT OF POSTS. /TRUE COPY/ K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 10767 of 2006 S - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of March, 2009 JUDGMENT Balakrishnan Nair, J. The petitioners are the applicants in O.A.No. 816 of 2004. All of them are Group D employees. Initially they were recruited to service, as casual employees. They were treated as temporary status acquired casual employees with effect from various dates between 1989 and 1990. Later, they were treated as equivalent to temporary Group D employees, from various dates between 1992 and 1993. Finally, they were regularised in Group D posts from various dates between 1999 and 2000. After they were treated on par with temporary Group D employees between 1992 and 1993, they were being paid productivity linked bonus at the rate applicable to Group D employees. Later, after their regularisation, it was found out that they were ineligible to W.P.(C).No. 10767 of 2006 2 receive productivity linked bonus at par with Group D employees. So, it was noted that some excess payments were made to them. Proposing to recover the amounts from them, they were served with Exts.A5 to A12 communications. Challenging those communications, Ext.P1 Original Application was filed. 2. The Tribunal dismissed the application, mainly relying on a judgment of the Karnataka High Court, a copy of which is produced as Annex.R1 in Ext.P2, reply statement of the respondents. The order of the Tribunal is Ext.P6 dated 13.3.2006. Challenging Ext.P6, this Writ Petition was filed. Though various contentions were raised regarding the merits of the case, we respectfully agree with the decision of the Karnataka High Court, based on which the Tribunal rendered its decision. Therefore, we hold that excess payments were made to the petitioners by mistake. But, the learned counsel for the petitioners submitted that they were temporary status casual employees and the amounts were paid between 1992 and 2000. It is quite unfair to recover such payments in 2004, it is submitted. W.P.(C).No. 10767 of 2006 3 3. We notice that there are conflicting decisions of this Court and the Apex Court, regarding recovery of excess amounts paid to the employees. Those decisions were rendered on the facts of the concerned case. In this case, we notice that the employees involved are temporary status casual employees. They are low paid employees. The competent authority also thought that they are eligible to get productivity linked bonus at par with Group D employees. The payment was made in good faith and it was received in good faith also. They did not keep those amounts in Bank deposit, to be repaid upon demand. They have received and expended it every month and the period of payment is spread over about 8 years. Long thereafter, the present demand is made. 4. Having regard to the fact that low paid casual employees are involved in this case, we feel that the recovery of excess payment made to them cannot be permitted. Therefore, the recovery sought to be made as per Exts.A5 to A12 from the writ petitioners is not permissible. It is declared so. In the result, Ext.P6 is quashed. W.P.(C).No. 10767 of 2006 4 5. The Writ Petition is allowed as above. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) Judge tm