IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE THURSDAY, THE 15TH DECEMBER 2011 / 24TH AGRAHAYANA 1933 WP(C).No. 28349 of 2004(Y) ---------------------------------------- PETITIONER(S): ----------------------- 1. T.N. VIJAYAN, KOCHUMALIYEKKAL, S.N. PURAM, PAMPADI (RETD. U D C). 2. P.M. CHACKO, PARANJATTU HOUSE, CHAMAMPATHAL P.O., VAZHOOR. (RETD.SUPDT.) 3. KAIRALI, THOPPIL HOUSE, THAZHATHANGADI P.O., KOTTAYAM-5. (RTD.HEALTH SUPERVISOR). 4. P.S. THARADEVI, SAI SMRUTHI, PUTHANANGADI ROAD, KOTTAYAM-1. (RETD.UDC). 5. K. LEELA, LAKSHMI SADANAM,KUDAMALOOR P.O., KOTTAYAM-17. (RETD.JUNIOR PUBLIC HEALTH NURSE). BY ADV. SRI.MVS.NAMBOOTHIRY SRI.PRADEEP PADMAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY LOCAL ADMINISTRATION , TRIVANDRUM 2. THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL ADMINISTRATION, SECRETARIAT, TRIVANDRUM. 3. THE DIRECTOR OF MUNICIPAL ADMINISTRATION DIRECTORATE, TRIVANDRUM. 4. THE KOTTAYAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, KOTTAYAM. 5. THE DIRECTOR OF LOCAL FUND, TRIVANDRUM. R3 BY ADV. SRI.SIBY MATHEW , SRI.A.A.MOHAMMED NAZIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2011, THE COURT ON 15/12/2011 DELIVERED THE FOLLOWING: tss W.P.(C) NO.28349/2004 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PROCEEDINGS OF THE PETITIONER. P2:- PENSION PAYMENT ORDER ISSUED BY THE 4TH PETITIONER DTD. 16.10.96. P3:- COPY OF THE PROCEEDINGS, NO.A5 (G9) 10618/2004 DTD 7.9.2004 ISUED BY THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS NIL TRUE COPY P.S. TO JUDGE tss A.M.SHAFFIQUE, J. ----------------------------------------------------------- W.P.(C) No. 28349 of 2004 – Y ----------------------------------------------------------- Dated this the 15th day of December, 2011 J U D G M E N T The petitioners challenge Ext.P3 order issued by the 3rd respondent fixing the pensionary benefits which were due to the petitioners with effect from their date of retirement i.e. from 01.3.1997 and calling upon them to refund the excess payment effected as pensionary benefits, which according to the 3rd respondent was based on a letter issued by the Deputy Director of Local Fund on 25.11.2002 2. It seems that there was a mistake in the calculation of pensionary benefits, which resulted in Ext.P3 order. The learned counsel for the petitioners contends that refixation of the pensionary benefits is bad in law and the demand now made as per Ext.P3 is against the judgment of the Apex Court reported in Sahib Ram v. State of Haryana [1995 (Supp (1) SCC 18] and the judgment of this Court reported in Satyapalan v. Deputy Director of Education [1998 (1) KLT 399]. It is further contended that there had been no departmental -2- W.P.(C) No.28349/2004-Y proceedings for recovering back the amount paid and as such Ext.P3 is liable to be set aside. 3. The respondents, on the other hand, contended that Ext.P3 had been issued in accordance with law. There was a mistake in the calculation of pensionary benefits which was corrected by the intervention of the Deputy Director of Local Fund, Municipal Audit, Kottayam and the pensionary benefits actually due had been computed in Ext.P3. 4. Having heard the counsel on either side and having gone through the pleadings of the parties, I am of the opinion that there is no material to show that the pensionary benefits fixed as per Ext.P3 is in any way illegal. Pension had been fixed earlier by way of a mistake which was corrected by Ext.P3 after necessary audit. Therefore, the refixation of the pensionary benefits cannot be termed as illegal and the petitioners are liable to be paid pension only in terms of Ext.P3. 5. In Sahib Ram's case (supra), it is held that if a higher pay scale was given by a wrong construction and not on account of any misrepresentation by the petitioners, the amount -3- W.P.(C) No.28349/2004-Y paid until such date cannot be recovered. The same is the position in Satyapalan's case (supra). This position of law is reiterated by the Supreme Court in Registrar, Cooperative Societies Haryana and others v. Israil Khan and others. [(2010)1 SCC 440] in which it is held in paragraph 7 as follows: “There is no “principle” that any excess payment to employees should not be recovered back by the employer. This Court, in certain cases has merely used its judicial discretion to refuse recovery of excess wrong payments of emoluments/allowances from employees on the ground of hardship, where the following conditions were fulfilled: (a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. (b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous”. In this case also there is no contention on behalf of the respondents that the pensionary benefits were originally fixed -4- W.P.(C) No.28349/2004-Y on the basis of any misrepresentation or fraud on the part of the petitioners. As such, the Department is not entitled to seek refund of the excess amount paid as shown in Ext.P3. 6. Under these circumstances, the following orders are passed: a. The refixation of pension under Ext.P3 is not interfered with. b. The demand for refund of excess amount paid as shown in Ext.P3 is set aside. The writ petition is therefore allowed as stated above. A.M.SHAFFIQUE, JUDGE rka