IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 WP(C).No. 21260 of 2003(E) --------------------------------------- PETITIONER: ------------------- N.KRISHNAN, AGED 57 YEARS, S/O. CHOYIAMBU, RESIDING AT CHALA ROAD, KASARAGOD VILLAGE & TALUK, KASARAGOD DISTRICT, (RETIRED HUZUR SHERISTADAR, COLLECTORATE, KASARAGOD). BY ADV. SRI.KODOTH SREEDHARAN. RESPONDENTS: ------------------------ 1. THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM. 2. THE COMMISSIONER, LAND REVENUE DEPARTMENT, PUBLIC OFFICES, THIRUVANANTHAPURAM. 3. THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1. 4. THE PRINCIPAL SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM-1. BY GOVERNMENT PLEADER SRI. M.P. SREEKRISHNAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.21260/2003-E: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE LETTER NO. GE XI/A/279/1949 DT. 21/06/2000. EXT.P.2: COPY OF THE ORDER NO. M1/3020/2000 (1) DT. 07/12/2000. EXT.P.3: COPY OF THE LETTER NO. GE XI/A/LRK 631/1375/8199 DT. 09/12/01 AS PER THE R.1. EXT.P.4: COPY OF THE LETTER NO. P12/PEN/A/488/BD/01-02/1183 DT. 28/11/01. EXT.P.5: COPY OF THE ORDER NO. FB (A) 5/7046/01 DT. 08/04/02. EXT.P.6: COPY OF THE LETTER NO. GE XI/A/1241/ DT. 12/02/2002 ISSUED BY THE R.1. EXT.P.7: COPY OF THE REPRESENTATION TO THE R.1. BY THE PETITIONER DT. 05/04/2002. EXT.P.8: COPY OF THE LETTER NO. GE XI/A/LRK/63489 DT. 17/04/02. EXT.P.9: COPY OF THE LETTER NO. P12/BD/72643820/143 DT. 27/04/2002. EXT.P.10: COPY OF THE REPRESENTATION TO THE 3RD AND 4TH RESPONDENTS DT. 21/08/01. EXT.P.11: COPY OF THE LETTER NO. 48013/01/LRG 7 DT. 18/01/02. EXT.P.12: COPY OF THE JUDGMENT IN O.P. 19082/02 DT. 11/07/02 IN THIS HONOURABLE COURT. EXT.P.13: COPY OF THE COMMUNICATION DT. 17/03/2003. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No.21260 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of February, 2008 JUDGMENT The complaint relates to recovery of excess pay after retirement. Petitioner challenges Exts.P1 to P3, P6, P9 and P13, and seeks a direction to release the terminal surrender amount of Rs.67,330/-. 2. Fixation was done during 1985. Petitioner retired on 31.10.2001. Prior to that there was an audit objection in 2000. Excess pay paid to the petitioner for the period from 6.6.1985 to 7.12.1999 sought to be recovered. The petitioner had approached this court earlier and this court by Ext.P12 judgment directed the consideration of the representation filed by the petitioner. Accordingly, Ext.P13 order is passed. Ext.P13 reads as follows: “Government have not taken a general stand to waive the excess amount drawn due to erroneous fixation of pay. It is also seen that you have given consent to deduct the liability on account of excess drawl due to erroneous fixation from your gratuity. Similarly your contention regarding reckoning of the period of increment bar due to punishment is not correct. As per the orders contained in G.O.(P) No.1041/79/Fin.dt.27.11.1979, services not counting for increment as a punishment will not be reckoned as qualifying WPC. 21260/2003. 2 service for higher grade w.e.f. 1.7.1979.” 3. I heard learned counsel for the petitioner and also the learned Government Pleader. 4. Learned counsel for the petitioner contends that the recovery is sought to be made in respect of payments made nearly 15 years prior to the date of the audit objection. He would submit that there is no basis for ordering such a recovery. Petitioner has retired, as already noticed, on 31.10.2001. He would submit that Rule 3(c) of Part III of Kerala Service Rules allows recovery only in respect of payments made upto four years prior to retirement and recovery in this case is in violation of Rule 3(c). 5. I am not impressed by that argument. Rule 3(c) of Part III KSR permits recovery upon discovery of mistaken payment within four years of retirement of payment made prior to four years of retirement. In this case, the audit objection is on 21.6.2000 and the recovery was sought to be made, no doubt at a time when the petitioner was in service. Therefore, Rule 3(c) cannot be applied. Then learned counsel for the petitioner relied on the decision of the Apex Court reported in Aleyamma Varghese v. Secretary, General Education Department (2007(3) K.L.T. 700). That was a case where apparently the recovery was sought against the payments made 17 years ago. In that case, to do complete justice between the parties WPC. 21260/2003. 3 and treating it as a peculiar case, in my view, without laying down a principle of law to be followed under Article 141, took the view that recovery should not be permitted. This is a case where the petitioner consented for recovery. Payments were effected on the basis of the consent. Learned Government Pleader submits that the payments made to the petitioner were infact erroneous and excess. In such circumstances, as pointed out by the learned Government Pleader, the question is covered against the petitioner by virtue of the dicta laid down by a Division Bench of this court in Santhakumari v. State of Kerala (2005(4) K.L.T. 649). Taking a departure from the earlier view that if the employee has not made any representation or committed any fraud, payments made under a mistake cannot be recovered, this court has taken the view that even if there is no misrepresentation, it cannot be laid down as an inexorable rule that recovery cannot be effected. In such circumstances, I would think that particularly, having regard to the fact that petitioner himself consented to the recovery and no doubt making it subject to a decision on merits of the petitioner's contention he cannot resile. There is no contention raised against the recoverability of the amount in law. If that be so, in the teeth of the consent given by the petitioner himself and in the light of the principle laid down by the Division Bench of this court, it may not be open in a proceedings under WPC. 21260/2003. 4 Article 226 to interfere in the matter. However, I notice that the petitioner is a retired hand and while finding that the writ petition is liable to be dismissed, I am inclined to permit the petitioner to pay off the amount due under the impugned proceedings in twelve equal monthly instalments. Learned Government Pleader submits that no interest is being levied. In such circumstances, the second respondent will issue to the petitioner computation of the exact amount to be paid in instalments within a period of two weeks from the date of receipt of a copy of this judgment and the petitioner is permitted to pay off the amount in twelve equal monthly instalments, the first instalment being payable on or before 1.3.2008. In the event of the petitioner not paying any one of the instalments, the amount payable shall be recoverable in lump sum in accordance with law. The writ petition is disposed of as above. (K.M. JOSEPH, JUDGE) sb