IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 WP(C).No. 21595 of 2004(U) -------------------------- PETITIONER(S): --------------- M.L.GEORGE, DRIVER (RETIRED), KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVALLA, MELEKKARAN, MEMANA HOUSE, VELLAYIL P.O., THEEYADICKAL, THIRUVALLA. BY ADV. SRI.P.P.SOMAN NAIR RESPONDENT(S): --------------- 1. KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE EXECUTIVE DIRECTOR (A), KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM. 3. THE DISTRICT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVALLA. ADV. SRI.K.PRABHAKARAN, SC, K.S.R.T.C. FOR R1TO3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/02/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 21595/2004. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE RELEVANT PAGE OF SERVICE BOOK. P2. COPY OF THE -do- P3. COPY OF THE MEMO DTD.28.8.03 BY R2. P4. COPY OF THE MEMO DTD.16.9.03 BY R3. P5. COPY OF THE MEMO DTD.10.12.03 BY R2. P6. COPY OF THE JUDGMENT IN W.P.(C).No. 40260/03 OF THIS COURT. P7. COPY OF THE MEMO DTD.16.2.04 BY R1. P8. COPY OF THE ORDER DTD.8.3.04 BY R1. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.21595 of 2004 ================== Dated this the 3rd day of February, 2009 J U D G M E N T The petitioner entered the service of the KSRTC as a Reserve Driver on 18.12.1998 on advice by the Public Service Commission. At that time as per the rules of the KSRTC, Reserve Drivers were to be employed on daily wages and on completion of 240 days, they were to be absorbed in regular service as Grade II Driver. On completion of 240 days he was absorbed as a Grade II Driver with effect from 17.1.1984. He availed of leave without allowances under Appendix 12A fo the Kerala Service Rules with effect from 31.12.1984 for 5 years. But before expiry of the leave period, he rejoined duty on 29.9.1986 after cancelling the unavailed portion of the leave. Thereafter, counting his service from 17.1.1984, excluding the period of leave, he was sanctioned increment with effect from 15.10.1986. Based on that, the pay was revised and he was given all benefits accordingly. Subsequently, an audit objection was raised against the same on the ground that since the petitioner had gone on leave under Appendix 12A before completion of probation he had to undergo probation afresh after rejoining duty. Ultimately by order dated 8.5.1987 the Manager (Personal and Administration) waived that objection as is evident form Ext.P1 extract from the service book of the petitioner. Thereafter, by Ext.P3 dated 28.8.2003 the whole w.p.c.21595/04 2 proceedings were cancelled by the Executive Director of the KSRTC and it was directed that the petitioner's pay be refixed from 29.9.1986. By Ext.P4, the pay was accordingly refixed and excess pay was directed to be recovered from the petitioner. By Ext.P5, the petitioner's representation in this regard was rejected. The petitioner filed further representation which was directed to be considered by the Managing Director as per Ext.P6 judgment of this Court. The Managing Director reconsidered the matter and again by Ext.P7 order, rejected the representation. The petitioner is challenging Ext.P7 order and seeking the following reliefs in this writ petition: “i. issue a writ of certiorari or any other appropriate direction or order, calling for the records leading to Exhibits P3, P4, P5, P7 and P8 and quash the same in so far as the same permit reduction in the pay and pension of the petitioner. ii. issue a Writ of mandamus or any other appropriate writ, order or direction, directing the respondents to refix the pay and pensionary benefits due to the petitioner in accordance with Ext.P2 forthwith and to disburse the entire amount so fixed and payable to him within a time limit to be fixed by this Honourable Court. iii. issue a writ of mandamus or any other appropriate direction directing the respondents to pay the amount in the Provident Fund Account and Staff Welfare Fund due to the petitioner with interest till date of payment forthwith.” 2. The petitioner does not dispute the fact that on rejoining duty after leave he was liable to undergo probation afresh and therefore, sanctioning of increment on 15.10.1986 was irregular. The contention of the petitioner is that in view of the decisions in Aleyamma Varghese v. Secretary, General Education Dept. w.p.c.21595/04 3 [2007(3) KLT 700 (SC)] and Narayanan v. State of Kerala [2008 (3) KLT 188] recovery from pay on account of audit objection after a long period of time is not proper. According to the petitioner, the pay of the petitioner was fixed after granting increment on 15.10.1986 which is sought to be recovered after about 18 years, which is patently unjust and unreasonable, and cannot be permitted in view of the above decisions. 3. I have considered the rival contentions in detail. 4. I am of opinion that the decisions relied upon by the petitioner would be applicable only in cases where recovery proceedings itself were started after a long period of time. In this case, immediately after the fixation of the pay of the petitioner, audit objection had been raised. As is evident from Ext.P1 submitted by the petitioner himself a memo was issued on 5.6.1990, to which the petitioner had also filed representation on 25.11.1996, on the basis of which Ext.P1 endorsement waiving the audit objection has been recored in Ext.P1. As such, there is not such a long delay in initiating proceedings for recovery as suggested by the petitioner so as to attract the ratio of the decisions relied on by the petitioner. In the above circumstances, I am not inclined to give the benefit of those decisions to the petitioner. Accordingly the writ petition is dismissed. 5. Since the petitioner has retired from service, if the w.p.c.21595/04 4 petitioner's turn has arisen in accordance with the priority of his date of retirement for payment of retirement benefits, the same shall be disbursed after deducting the excess payment made on account of wrong fixation, within one month from the date of receipt of a certified copy of this judgment. If the turn has not already arisen, the payment shall be in accordance with his turn. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge