IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 WA.No. 13 of 2007(B) -------------------- AGAINST THE JUDGMENT IN OP.23631/2000 Dated 19/08/2004 .................... APPELLANTS: RESPONDENTS ---------------------------------- 1. KERALA STATE ELECTRICITY BOARD, REP BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, REP BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 3. CHIEF INTERNAL AUDITOR, KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB RESPONDENT: PETITIONER -------------------------------- T.K.NARAYANAN, OVERSEER (RETIRED), KERALA STATE ELECTRICITY BOARD, P.O., CHINGAPURAM, THIKKODI, KOZHIKODE DIST. BY ADV. SRI.P.M.PAREETH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. B. KOSHY & K. P. BALACHANDRAN, JJ. ------------------------------------------------ W. A. No.13 of 2007 ------------------------------------------------ Dated this the 5th day of August, 2008 JUDGMENT J. B. Koshy, J Respondent/petitioner entered in the service of the first appellant/Board on 10/07/1968 as Electricity Worker. After a long continued service of 32 years, he retired on 29/02/2000. He was granted pensionary benefits etc. Ext.P3 is the audit objection dt. 03/06/2000 (after four months of retirement). It states that while fixing his pay with effect from 01/10/1977 an irregularity was committed and hence, his re-option is irregular and his pay is to be refixed and the excess paid shall be recovered. Ext.P3 was communicated from the Chief Internal Auditor to the Executive Engineer. Respondent/ petitioner was not served with a show cause notice before refixing his pay. On the basis W. A. No.13 of 2007 -2- of the audit objection, the appellant/Board decided to resort to recovery proceedings to recover the alleged excess pay in instalments from the respondent/petitioner's pension. Aggrieved by this the respondent/petitioner approached this Court. According to the respondent/petitioner, he did not make any misrepresentation. His pay was fixed as per the rules applicable and there is no mistake in the fixation of pay. Learned Single Judge noticed that the alleged wrong fixation of salary in the year 1977 was sought to be recovered in the year 2000 even without a show cause notice or without any adjudication, but merely on the basis of audit objection. Hence, the learned Single Judge set aside the decision of the appellant/Board to recover the alleged excess pay from the respondent/ petitioner's pension. In this connection, we also refer to the decision of a Division Bench W. A. No.13 of 2007 -3- of this Court in Narayanan v. State of Kerala (2008(3) KLT 188). In Aleyamma Varghese v. Secretary, General Education Department (2007(3) KLT 700 (SC), the Honourable Supreme Court held as follows:- “A mistake apparent on the face of the record may be rectified but in a matter of this nature, we would expect the State to react more magnanimously and not resort to recovery proceedings after a period of 17 years. We, therefore, in the peculiar facts and circumstances of this case, are of the opinion that with a view to do complete justice to the parties, the amount sought to be recovered may not be recovered from the appellant and we direct accordingly. The impugned judgment is set aside and the appeal is allowed with the aforesaid observations and directions.” Considering the facts of this case and also noticing that there was no adjudication regarding the wrong fixation and also considering the fact that he was a retired low paid employee and the alleged mistake happened more than two decades back during his service, we are of the view that recovery of the amount at this stage after retirement is unjust and W. A. No.13 of 2007 -4- we fully agree with the reasoning of the learned Single Judge. Appeal fails and is dismissed accordingly. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-