IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 WP(C).No. 5957 of 2004(H) ------------------------- PETITIONER: --------------- L.LALITHA BAI, AGED 55 YEARS, W/O. K.SUGATHAN (LATE) RETD. JUNIOR PUBLIC HEALTH NURSE, KOLLAM CORPORATION, RESIDING AT KATTILAYITTA VILA VEEDU, NADUMGOLAM P.O., KOLLAM. BY ADV. SRI.S. HARIKRISHNAN RESPONDENTS: ----------------------- 1. KOLLAM CORPORATION , REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, KOLLAM 2. THE DEPUTY DIRECTOR, LOCAL FUND AUDIT, TRIVANDRUM. BY SPL. GOVT. PLEADER ADVL. SHRI N. MANNOJ KUMAR. R1 BY ADV. SRI.M.K.CHANDRA MOHAN DAS,SC,KOLLAM MPT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5957 of 2004(H) APPENDIX PETITIONER'S EXHIBTS: EXT. P1 : TRUE COPY OF THE G.O.(MS)NO.162/87/LAD DATED 13.07.1987 ISSUED BY THE GOVERNMENT. EXT.P2 : TRUE COPY OF THE REPLY DATED 11.08.1987 FORWARDED BY THE DIRECTOR OF MUNICIPAL ADMINISTRATION TO THE MUNICIPAL COMMISSIONER. EXT.P3 : TRUE COPY OF THE COMMUNICATIION NO.LF.QM2- 305/2003 DATED 15.09.2003 ISSUED BY THE 2ND RESPONDENT ADDRESSED TO THE DIRECTOR, LOCAL FUND AUDIT WITH COPY TO THE 1ST RESPONDENT. EXT.P4 : TRUE COPY OF THE ORDER NO.G7-46361/01/DATED 19.12.2003 ISSUED BY THE 1ST RESPONDENT ORDERING TO RECOVER THE EXCESS AMOUNT ALLEGED TO HAVE BEEN DRAWN BY THE PETITIONER FROM HER DCRG. /TRUE COPY/ P.S. TO JUDGE. P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 5957 OF 2004 ......................................................................... Dated this the 4th March, 2009 J U D G M E N T Ext.P4 proceedings of the first respondent pursuant to Ext.P3 audit objection, ordering to recover an amount of Rs. 26,908/- from the D.C.R.G. payable to the petitioner, stating it as 'excess payment' by virtue of the wrong fixation given to him about 1 ½ decades back is subjected to challenge in this Writ Petition. 2. The petitioner joined the service of the first respondent as a Junior Public Health Nurse with effect from 06.12.1985. Prior to her coming into the Municipal Common Service, she was provisionally working as Female Health Worker Gr.II in the Health Department for the period from 15.09.1983 to 05.12.1985 in the very same scale of pay as in the case of Junior Public Health Nurse. During that period, it is stated that she was given increment on 01.09.1984 and 01.09.1985. It is the case W.P.(C) No. 5957 OF 2004 2 of the petitioner that as per Ext. P1 order, the Government had ordered to count the prior Government service of the employees of the Municipal Common Service for the fixation of salary as per Rule 159 of Part I, KSR. It is further pointed out that when a doubt arose in this regard in 1987, the then Municipal Commissioner had sought for a clarification from the Director of Municipal Administration, who confirmed the position vide Ext. P2 clarifying that the petitioner was entitled to get the benefit of Ext. P1. It was accordingly that the pay of the petitioner was fixed and she was enjoying the benefits till her retirement on 31.10.2003. 3. It is submitted by the learned counsel for the petitioner that just before the retirement of the petitioner, she was served with Ext. P3, a copy of the audit objection dated 15.09.2003 stating that fixation of pay of the petitioner was quite wrong; that she was not entitled for the benefit of Ext. P1, since Ext.P1 contemplated payment of the benefit under the said Government Order only to such employees who came to the W.P.(C) No. 5957 OF 2004 3 Municipal Common Service on 'transfer', whereas the petitioner's prior service was only as a 'provisional employee'. 4. Referring to the contents of the counter affidavit filed, it is pointed out by the learned Government Pleader that even the permanent employees who got appointment through the Public Service Commission and thereafter chose to come to the Municipal Common Service by virtue of a fresh selection by the P.S.C. are also not entitled to the benefits of Ext.P1. Adverting to Rule 3C of Part III K.S.R., the learned Senior Government Pleader further submits that the Government is entitled to recover the excess payment effected by mistake from the concerned employee, if it is detected within a period of 'four years' from the date of retirement, to such extent it was paid within 'four years' prior to the date of retirement. The decision rendered by a Division Bench of this Court in Principal Secretary to Government vs. Gopala [2005 (4) K.LT. 190] is sought to be relied on in this regard, apart from citing the decision rendered by another Division Bench of this Court in W.P.(C) No. 5957 OF 2004 4 Santhakumari vs. State of Kerala [2005 (4) KLT 649 ]. On the other hand, the learned counsel for the petitioner brought to the notice of this court as to the decision rendered by yet another Division Bench of this Court in Narayanan vs, State of Kerala (2008(3) KLT 188) to sustain his contention that no recovery can be effected after expiry of a long span of time, merely on the basis of 'audit objection', when there is no fraud, lapse or misrepresentation on the part of the employee. 5. With regard to the dictum in 2008 (3) KLT 188, evidently the same has been passed relying on the decision rendered by the Apex Court in Babulal Jain vs. State of M.P. [(2007) 6 SCC 180] and in Aleyamma Varghese vs. Secretary, General Education Departmen t [2007(3) KLT 700 (SC)] holding that no recovery is permissible when there was no fraud or misrepresentation on the part of the employee. But the relevant portion of the judgment rendered by the Apex Court as extracted in the said decision shows that the relief was granted by the Apex Court taking note of the particular facts and W.P.(C) No. 5957 OF 2004 5 circumstances prevailed in the said case and not with disregard to any specific rule as in the instant case ( Rule 3C of Part III K.S.R.). Applicability and consequences of the said rule has not been dealt with in the decision rendered in 2008(3)KLT 188 (cited supra), though another decision rendered by an earlier Division Bench with reference to Rule 3C of Part III K.S.R. (Santhakumari vs. State of Kerala [2005(4) KLT 649] ) has been referred to. Accordingly, it has been observed that even going by the dictum in Santhakumari vs. State of Kerala, it is permissible to decline recovery from the employee 'in appropriate cases' depending upon the facts and circumstances of each case 6. Learned Spl. Government Pleader pressed very much on the dictum in Santhakumari vs. State of Kerala to sustain Exts. P3 and P4 orders for recovering the entire amount due from the employee, by way of excess payment given, in view of the rule position as discussed therein . Rule 3C of Part III K.S.R. is extracted below for the purpose of reference: W.P.(C) No. 5957 OF 2004 6 “Notwithstanding anything contained in these rules, recovery of excess payments made to an officer by mistake within a period of four years before his retirement and which are detected within a period of four years after retirement may be made from his pension and other amounts due to him after retirement subject to the condition that such deduction if made from his pension shall be effected only in monthly instalments in whole rupees and that the amount of each instalment shall not exceed 10 per cent of the monthly pension admissible to him. It is obvious from the above rule that the right of recovery reserved therein mainly rests on two limbs. Firstly, the mistake has to be 'detected within four years from the date of retirement'. Secondly, only such excess payment can be recovered which has been 'paid within four years prior to the date of retirement'. In other words, no recovery can be effected with respect to any excess payment in respect of a period more than four years prior to the date of retirement. The rule position has W.P.(C) No. 5957 OF 2004 7 been explained by a Division Bench of this court in Principal Secretary to Government vs. Gopala (2005 (4) KLT 190) declaring the extent of the recoverable amount. 7. Following the specific mandate under Rule 3C of Part III K.S.R. and the legal position explained by the Division Bench in Principal Secretary to Government vs. Gopala(2005 (4) KLT 190) it is seen that the mistake in the case of the petitioner as to the excess payment was detected even one month prior to his retirement as borne by Ext. P3 audit objection. Consequential orders were issued as borne by Ext.P4 within three months after his retirement. But on further scrutiny, it is revealed that the amount of Rs.26,908/-, stated as recoverable in Ext.P4 is in respect of the period from “06.12.1985 to 01.01.2003” and that it is 'not fully recoverable' in view of the specific rule position. In fact, the respondents can effect recovery only to the extent of excess payment for the period from 01.11.1999 to 31.10.2003 , i.e., four years, as contemplated, just prior to the date of retirement. Further, the respondents are also not justified to W.P.(C) No. 5957 OF 2004 8 have it recovered in lump sum. They can effect recovery only by way of 'instalments' which shall not exceed 10% of the monthly pension payable, as specifically provided in Rule 3C of Part III K.S.R. The challenge against Exts.P3 and P4 is sustained and are quashed to the above extent. The Writ Petition is disposed of accordingly. P.R. RAMACHANDRA MENON, JUDGE. lk