IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 WP(C).No. 2332 of 2008(C) ------------------------------------- PETITIONER(S): ---------------------- E.V. MOHANAN, S/O. THE LATE V.N.VASU, AGED 57 YEARS, TECHNICIAN IV (RETIRED), DEPARTMENT OF INSTRUMENTATION, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN-22, RESIDING AT 'BHAVAMIKA' HOUSE, CHANGANPUZHA NAGAR P.O., KOONAMTHAI, COCHIN-33. BY ADV. MR.TOJAN J. VATHIKULAM. MR.K. RAMACHANDRAN (THYKOODAM) RESPONDENT(S): ------------------------- 1. COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI, REPRESENTED BY ITS REGISTRAR. 2. DEPUTY REGISTRAR (FINANCE), COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY. 3. FINANCE OFFICER, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI-22. 4. DEPUTY DIRECTOR (HG), LOCAL FUND AUDIT, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI-22. 5. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R5 BY GOVERNMENT PLEADER R1 TO R4 BY ADV. MR.S.P.ARAVINDAKSHAN PILLAI,SC,COCHIN UNIVERSITY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 2332/2008-C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER NO.AD.A3/13527/80 DATED 04/02/1988 OF THE 1ST RESPONDENT. EXT.P2: COPY OF THE ORDER NO.FIN.II/152/F/87-88 DATED 01/03/1988 OF THE 1ST RESPONDENT. EXT.P3: COPY OF THE STATEMENT OF FIXATION OF PAY ISSUED BY THE 1ST RESPONDENT. EXT.P4: COPY OF THE ORDER NO.AD.A3/35/87 DATED 13/11/1989 OF THE 1ST RESPONDENT. EXT.P5: COPY OF THE ORDER NO.FIN.II/196/F/89-90 DATED 02/03/1990 OF THE 1ST RESPONDENT. EXT.P6: COPY OF THE ORDER NO.AD.A3/A.OBJ./99 DATED 15/03/2002 OF THE 1ST RESPONDENT. EXT.P7: COPY OF THE ORDER NO.FIN.II/F/906/02 DATED 16/05/2002 OF THE 1ST RESPONDENT. EXT.P8: COPY OF THE ORDER NO.FIN.IV/271/P/2005-06 DATED 11/09/2006 OF THE 1ST RESPONDENT. EXT.P9: COPY OF THE PENSION PAYMENT ORDER NO.PPO NOO.FIN IV/271/P/2005-06 DATED 11/09/2006 OF THE 1ST RESPONDENT. EXT.P10: COPY OF THE PAY SLIP. EXT.P11: COPY OF THE PAY SLIP. EXT.P12: COPY OF THE CERTIFICATE ON LIABILITY NO.AD.C2/NLC/2006 DATED 03/07/2007 OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE ORDER NO.AD.G2/NLC/2006 DATED 20/11/2008 OF THE UNIVERSITY. //TRUE COPY// P.S. TO JUDGE rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.2332 of 2008-C - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of August, 2009. JUDGMENT The petitioner while working as Technician Grade IV in the first respondent University, retired from service on superannuation on 30.9.2005. He was initially appointed as Technician Grade B (Carpentry) in the scale of pay of Rs.420-720 on 20.6.1979. Subsequently, the said post was upgraded to Technician Grade C and the petitioner was placed in the upgraded scale of Rs.950 - 1640 with effect from 5.12.1987 as per order dated 4.2.1988, Ext.P1. The petitioner opted for the revised scale and sanction has been accorded by the Vice Chancellor to fix the pay in the scale of Rs.950-1640 at Rs.1075/- with effect from 1.1.1988. Subsequently, the said scale was abolished and the pay of the petitioner was fixed in the scale of Rs.975 - 1720 at Rs.1075/-. Ext.P3 is the Pay Fixation Statement. Thereafter, the Syndicated in its meeting held on 7.10.1989 considered along with the recommendations of the Standing Committee of the Staff and Establishment and Finance and Purchase, the proposal for granting the petitioner the same scale of pay granted to the Technician C (Mechanist) and Technician C (Glass Blowing) and resolved that the disparity in the wpc 2332/2008 2 scale of pay between the Technician C (Carpentry) and the other two Technicians C in the University Science and Instrumentation Centre be rectified and the petitioner be granted the scale of pay of Rs.1100-2100 as a special case and accordingly the University issued order dated 13.11.1989 sanctioning the scale of pay of Rs.1100-2100. Ext.P4 is the said order. Thereafter, the pay of petitioner was fixed at Rs.1140/- in the scale of pay of Rs.1100-2100 with effect from 31.12.1988, as per Ext.P5 order. Thereafter, the post was re-designated as Technician IV by the University Grants Commission and the petitioner was granted the higher grade in the scale of pay of Rs.7200-11400 with effect from 31.12.1988, as per Ext.P6 order dated 15.3.2002. Accordingly, the pay of the petitioner was fixed at Rs.7600/- as per Ext.P7 order dated 16.5.2002. In Ext.P7 the monetary benefits were granted only with effect from 20.10.2001. While continuing so, he retired from service on 30.9.2005. According to the petitioner, considering the nature of work assigned to persons like the petitioner, higher grades were granted to them by obtaining the approval of the Syndicate. 2. It is submitted by the learned counsel for the petitioner that even though the petitioner retired from service on 30.9.2005, the respondents have not issued any order granting pensionary benefits for about one year. Thereafter, the second respondent issued Ext.P8 order dated 11.9.2006 wpc 2332/2008 3 stating that since Audit objections are outstanding against the petitioner, his pensionary benefits are calculated provisionally and also the objected portion is excluded from the calculation of pensionary benefits. Along with Ext.P8, the petitioner was served with a Pension Payment Order dated 11.9.2006 and Pay slip for the month of August, 2005, which are marked as Exts.P9 and P10. According to the petitioner, Exts.P8 to P10 are clearly arbitrary, unreasonable and totally unsustainable. It is submitted that the refixation of his pay was made to his detriment, without notice to him and without affording an opportunity of being heard. The petitioner has not been put to notice in respect of any audit objection while he was in service or after his retirement and he was not given any opportunity of being heard. Thereafter, the petitioner has been served with a liability certificate dated 3.7.2007 certifying that there are no liabilities outstanding against him except an amount of Rs.2,26,531/- being the excess pay drawn as per the reports on liability received from the concerned section. The same is produced as Ext.P12. 3. The stand taken by the University in the counter affidavit, is that the meeting of the Syndicate held on 7.11.2003 considered the direction from the Government to take a decision on Time Bound Higher Grades and scales of pay granted to employees only in conformity with the Government Orders. It was resolved that provisional pension based on undisputed claim wpc 2332/2008 4 may be granted to the employees. This led to issuance of Exts.P8 and P9. Later, the University calculated the liability of the petitioner and issued Ext.P12 liability certificate. It is further stated in para 6 of the counter affidavit that dropping of audit objections is the exclusive prerogative of the 4th respondent and the University has no say in the matter. The University has already written to the Government to get the audit objections dropped and also to have a concurrence of the Government on introduction of the Technical Cadre (Scientific) in the University. It is also stated that the reasons/justification put forth by the University were not acceptable to the 4th respondent. It is further stated in para 13 of the counter affidavit that the Syndicate in its meeting held on 19.7.2008 resolved to release the withheld amount of DCRG of all the employees who retired from the University service. The University by its order dated 20.11.2008 ordered not to treat the excess pay drawn by the petitioner as liability. Ext.R1(a) is the said order. Thereafter, the petitioner has been sanctioned an amount of Rs.2,26,531/- being the withheld amount of DCRG towards excess pay drawn on account of time bound higher grade promotions granted to him. 4. Learned counsel for the petitioner submitted that the issue is covered in favour of the petitioners by the decisions of this Court in W.P. (C) No.5908/2005 and W.P.(C) No.11580/2009. In the judgment in W.P. (C) No.11580/2009, this court, after referring to various aspects, held in wpc 2332/2008 5 paragraph (5) thus:- “From the above facts, it is clear that petitioner was given the benefits based on a Syndicate decision as evidenced by Ext.P1 dated 13/05/2002. The Syndicate is the competent authority as empowered under the Statute and its decision is well within its jurisdiction. As per the counter affidavit also, the University took up the matter with the Government to waive the Audit Objection. The only reason for issuing Ext.P6 is based on an audit objection and the Government did not agree with the view of the Syndicate. But the fact remains that the decision in Ext.P1 is not yet revoked or cancelled by any subsequent decision of the Syndicate. No materials whatsoever is also placed cancelling such decision. So long as Ext.P1 stands and payment having been effected based on the Syndicate decision, the question arises as to how any recovery could be made and any liability could be fastened based on a mere audit objection.” 5. This Court was therefore, of the view that the competent authority is Syndicate which is empowered to take a decision on the matter and unless that is replaced by a fresh decision, the liability cannot be fastened after retirement based on a mere audit objection. The decision of the Division Bench in Sreedharan v.Union of India [2002 (1) KLT 444] was also relied upon. I respectfully, agree with the same. In the judgment in W.P. (C) No.11580/2009, the same judgment has been relied on. wpc 2332/2008 6 6. In the light of the above, the petitioner is entitled to succeed in the writ petition. The petitioner is favoured by a decision of the Syndicate that Higher Grades granted to the employees upto 27.12.2003 was according to their decision and that was justified. They have also sought to drop the audit objection. In that view of the matter, the objections raised by the Audit cannot be sustained. The writ petition is therefore allowed. Exts.P8, P9, P10 and P12 to the extent they deny full pension and other retiral benefits, are quashed. There will be a direction to the respondents to revise and refix the due pensionary benefits to the petitioner in terms of the pay fixation effected from time to time. The monetary benefits shall be disbursed within a period of three months from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/