IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 WP(C).No. 23981 of 2009(P) -------------------------- PETITIONER(S): --------------- A.N.VALSALAKUMARI,RE TIRED TALI, VASUDEVAPURAM DEVASWOM,RESIDING AT VENU NIVAS, KUDAMALUR.P.O,KOTTAYAM. BY ADV. SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN RESPONDENT(S): --------------- 1. THE TRAVANCORE DEVASWOM BOARD REP; BY ITS SECRETARY,DEVASWOM BOARD BUILDINGS,NANTHANCODE THIRUVANANTHAPURAM. 2. THE DEVASWOM COMMISSIONER, THIRUVANANTHAPURAM. 3. THE ASSISTANT DEVASWOM COMMISSIONER, ETTUMANUR. 4. THE SUB-GROUP OFFICER, VASUDEVA PURAM DEVASWOM,KUDAMALUR.P.O,KOTTAYAM. ADV. SRI.P.GOPAL FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.23981/2009 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF SCHOOL REGISTER OF THE PETITIONER. P2 : COPY OF IDENTITY CARD ISSUED BY R1 TO THE PETITIONER. P3 : COPY OF ORDER DATED 21/07/2003 IN WPC NO.23250/03 OF THIS HONOURABLE COURT. P4 : COPY OF JUDGMENT DATED 10/11/2006 IN WPC NO.23250/2003. RESPONDENT'S EXHIBITS R3(a) : COPY OF REPORT OF R3 TO THE DEVASWOM COMMISSIONER DATED 06/07/2009. R3(b) : COPY OF CONSENT LETTER OF THE PETITIOENR DATED 10/06/2009. R3(c) : COPY OF ORDER OF THE DEVASWOM COMMISSIONER, ROC NO.12836/09/GRATUITY DATED 26/08/2009. // TRUE COPY // PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.23981 of 2009 (P) --------------------------------- Dated, this the 3rd day of December, 2009 J U D G M E N T The petitioner was working as a Thali in the Vasudevapuram temple within the Ettumanoor Group. Her date of birth in the service records in Malayalam Era is 11/03/1128 corresponding to 19/10/1952. On that basis, she would have attained the age of superannuation and ought to have retired from service on 31/10/2007. However, her date of birth was wrongly indicated in her identity card as 10/11/1953. On that basis, the petitioner continued in service till 31/10/2008. On retirement, this writ petition was filed by the petitioner praying for a direction to the respondents to disburse her terminal benefits reckoning her service till 31/10/2008. 2. In the counter affidavit filed, the stand taken by the respondents is that going by the date of birth of the petitioner, she ought to have retired from service on 31/10/2007, and that in view of Ext.R3(b), a consent letter executed by the petitioner on WP(C) No.23981/2009 -2- 10/06/2009, she is not entitled for terminal benefits for the period from 01/11/2007 to 31/10/2008. It is also their case that in Ext.R3 (b) the petitioner has agreed to be satisfied with payment of an amount equivalent to what is payable to persons engaged on temporary basis, for the aforesaid period. It is stated that therefore they are entitled to recover the excess amount paid to the petitioner from out of her terminal benefits that are due. 3. Admittedly, the petitioner's date of birth is 11/03/1128 (Malayalam Era) corresponding to 19/10/1952. If so, the petitioner ought to have retired from service on 31/10/2007. Consequently, her continuance for the period up to 31/10/2008 was erroneous. Therefore for the aforesaid period of service, the petitioner cannot claim any of the terminal benefits and this stand of the respondents deserves to be accepted. 4. However, the respondents go a step further and submits that having regard to Ext.R3(b), the petitioner is entitled only to be paid the amount payable only to temporary workers and that the amount paid in excess thereof is liable to be recovered. Having regard to the fact that the petitioner was a permanent employee, and as her continuance from 01/11/2007 to 31/10/2008 cannot be WP(C) No.23981/2009 -3- for reasons attributable to her, I am inclined to think that the petitioner is entitled to retain the salary, which has already been paid to her. If so, the proposal of the respondents to recover the alleged excess amount paid to her as salary for the aforesaid period, cannot be upheld. In view of the above, even the agreement given as reflected in Ext.R3(b) cannot be made use of by the respondents. 5. Therefore, this writ petition is disposed of clarifying that no amount from the salary paid to the petitioner for the period from 01/11/2007 to 31/10/2008 shall be recovered by the respondents, and that the petitioner will not be eligible for any terminal benefits for the period of her service beyond 31/10/2007. On this basis, the amount due to the petitioner will be quantified and paid to her. This shall be done as expeditiously as possible, at any rate, within eight weeks of production of a copy of this judgment. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg