IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 WA.No. 2917 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.36001/2005 Dated 05/07/2007 .................... APPELLANT(S): -------------- CAPT.A.A.KUTTY (RETIRED), AGED 62 YEARS S/O.LATE ABDUL RAZAK, (SECURITY OFFICER (RETIRED), CENTRAL BANK OF INDIA, REGIONAL OFFICE, METRO PALACE, ERNAKULAM, KOCHI-18), RESIDING AT FLAT NO.4A, STAR HOMES, CHERUPARAMBATH ROAD, KADAVANTHRA,KOCHI - 682 020. BY ADV. SRI.TPM.IBRAHIM KHAN RESPONDENT(S): --------------- 1. THE CENTRAL BANK OF INDIA, REPRESENTED BY ITS CHAIRPERSON & MANAGING DIRECTOR, CHANDER MUKHI, NARIMAN POINT, MUMBAI - 400 021. 2. THE GENERAL MANAGER, (PERSONNEL, CENTRAL BANK OF INDIA, CHANDER MUKHI, NARIMAN POINT, MUMBAI - 400 021. 3. THE REGIONAL MANAGER, CENTRAL BANK OF INDIA, REGIONAL OFFICE, IST FLOOR, METRO PALACE, ERNAKULAM NORTH, KOCHI - 682 018. ADV. SRI.DEVAN RAMACHANDRAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN, Ag. C.J. & C .N. RAMACHANDRAN NAIR, J. -------------------------------------------- W. A. No. 2917 OF 2007 -------------------------------------------- Dated this the 8th day of March, 2010 JUDGMENT Raman, Ag. C. J. Appellant is a retired security officer of the first respondent- Bank. After 11 years of service in the Army, he joined service of the first respondent-Bank and retired from service in 2005. All that he is entitled to for the service he has rendered with the Bank on re- employment after retirement from military are the gratuity amount, provident fund amount, and leave salary, if any, and he is not entitled for any pension from the Bank. By Ext. P6 communication dated 1.8.2005 the appellant was informed by the Bank that gratuity, provident fund and leave encashment were released to him, but while releasing the provident fund, an amount of Rs. 1,62,042.95 was deducted, as, according to the Bank, the same is excess salary paid to him during his service due to incorrect fixation of his basic pay at the time of joining. The basic pay of the appellant was fixed at Rs. 1895/- and according to the Bank, the basic pay of the appellant ought to have 2 been fixed at Rs. 1545/-. This mistake was however sought to be corrected by adjusting the deducted amount from the PF as excess salary drawn by the appellant. 2. This was the subject matter of challenge before the learned single Judge. Though before the learned single Judge the appellant took the stand that pay fixation was governed by Ext.P2 Rules, and when there was doubt regarding the pay fixation it was clarified by Ext.P8 by competent authority and therefore it was rightly fixed and revision of pay fixation was done without notice to the appellant, that too after 18 years of such payment. The stand taken by the Bank was that appellant was neither an Ex-emergency commissioned nor Ex- short commissioned Officer in the Armed Force, but Ext.P2 is meant for such Officer, and therefore he is not entitled to the benefit under Ext.P2 rules. The appellant on the other hand in his reply affidavit contended that as per Ext.P10 proceedings he is a Commissioned Officer in the rank of a Captain. The learned single Judge found that Ext.P10 does not show that the appellant is an Ex-emergency commissioned or Ex-short service Commissioned Officer and hence Ext.P2 has no application. On the contention that the present recovery 3 is correcting a mistake after 18 years in an arbitrary and unreasonable manner, the learned single Judge accepted the position that there are certain decisions supporting the appellant, but the learned single Judge made note of two recent Division Bench decisions of this Court in STATE OF KERALA v. SAIFUL ISLAM, (2006) 1 KLT 619 and UNION OF INDIA v. ROY, (2005) 2 K.L.T. 63 holding that public money paid wrongly can be collected from the employee concerned, even if there is considerable delay, and declined to interfere in the matter. Hence this Appeal. 3. The finding that Ext.P2 does not cover the case of the appellant is beyond doubt. But according to learned counsel Sri. T.P.M. Ibrahim Khan, appearing for the appellant, all Ex-servicemen are entitled to pay fixation. Ext.P2 itself would show that pay fixation formula for Ex-service Officers other than Emergency Commissioned/Short service Commissioned Officers is governed by circular dated 17.7.1987. In the case of other two categories excluded from that circular, Ext. P2 was issued. Whether or not pay of the appellant was fixed based on Ext.P2 or based on circular dated 17.7.1987, is not borne out by pleadings by either party nor is there any 4 document produced. At any rate, Ext.P8 would clearly show that it is a letter dated 4.2.1988 issued after considering his representation and after being satisfied that he has got grievance in the matter of fixation of pay, a genuine grievance that he should be given pay fixation as claimed by him at Rs. 1895/-. He claimed that his pay should have been fixed at Rs. 1895/- if the number of years of service he had put in the Army is also taken into account as provided in Central Office circular dated 16.9.1987. It is after application of the mind by the concerned officer that he was given pay fixation at Rs. 1895/-. Whether a person is entitled to a particular circular or not is not a mis- representation. He may lay a claim based on a circular. But it is for the concerned authority to consider whether he will be governed by Ext.P2 or any other circular and tell him whether his claim is genuine or that his claim is baseless. The mistake committed by the Officer who extended the benefit cannot be a fault of the Officer who claimed the benefit. This can only be the result of change of opinion. The mistake committed if any can be corrected within a reasonable time but not 18 years after the payment is effected. The Supreme Court on a number of occasions has held that in such situation , the question as to whether 5 recovery can be made or not should be evaluated based on facts and circumstances of each case. Though in earlier decisions it is held that except where there is misrepresentation or fraud, such mistake should not be allowed to be corrected, later decisions have made a slight distinction from the above and held that even in other situations and in appropriate cases it can be done. But in this case, the fact remains that until his retirement the Bank did not correct it's mistake, but after retirement sought to make deduction from the PF and to adjust the same against excess salary paid to him. The factual position being as stated above, we do not think the stand taken by the Central Bank in ordering recovery and adjustment against PF amount at the belated stage of career of the appellant is justifiable. In the result, we allow the appeal by setting aside the judgment of the learned single Judge and quashing Ext.P6. (P.R. RAMAN) Ag. Chief Justice (C.N.RAMACHANDRAN NAIR) Judge. kk 6