IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 WP(C).No. 6406 of 2005(K) ------------------------------------ PETITIONER(S): ------------------------ M.K.DINESAN,RETD. PHOTOCOPIER/DUPLICATOR OPERATOR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, MAVUMMOOTTIL HOUSE, CHANGAMPUZHA NAGAR P.O., KOCHI - 33. BY ADVS.MR.JOHNSON P.JOHN MR.BABY MATHEW RESPONDENT(S): ------------------------- 1. COCHIN UNIVRSITY OF SCIENCE AND TECHNOLOGY,REP.BY ITS REGISTRAR, KOCHI - 22. 2. THE FINANCE OFFICER, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,KOCHI-22. R1 & R2 BY ADVS.MR.SUNIL CYRIAC, SC, COCHIN UNIVERSITY, MR.A.A.ABUL HASSAN,SC,COCHIN UNIVERSIT MR.S.P.ARAVINDAKSHAN PILLAI,SC,COCHIN UNIVERSITY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2009, ALONG WITH WPC NO. 6809 OF 2005 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.6406/2005 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REPRESENTATION DTD. 5.7.1996. P2:- COPY OF THE UNIVERSITY ORDER DTD. 28.1.97. P3:- COPY OF THE REPRESENTATION DTD. 1.1.05. P4:- COPY OF THE ORDER DT.4.2.05 OF 2ND RESPONDENT. P5:- COPY OF THE REPRESENTATION DTD. 7.2.06. P6:- COPY OF THE PENSION PAYMENT ORDER DTD. 4.2.05. P7:- COPY OF THE LIABILITY CERTIFICATE DTD.9.2.05 ISSUED BY IST RESPONDENT. P8:- COPY OF THE JUDGMENT DTD. 1.2.07 IN WPC. 5908/05. RESPONDENT'S EXHIBITS R1(A):- COPY OF THE RELEVANT PORTION OF G.O.(P) 3000/98/FIN. DTD. 25.11.98 ISSUED BY THE GOVERNMENT OF KERALA. R1(B):- COPY OF THE LETTER NO.6397/82/02/H.EDN. DTD. 5.11.02 ISSUED BY THE GOVERNMENT OF KERALA. R1(C):- COPY OF THE LETTER NO.8045/B2/2004/H.EDN. DTD. 16.8.04 ISSUED BY THE GOVERNMENT OF KERALA. R1(D):- COPY OF THE REQUEST DTD. 5.7.96 OF THE PETITIONER. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.6406/05-K & 6809/2005-I - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of August, 2009. JUDGMENT The petitioners herein have retired from the service of the first respondent University and are aggrieved by the refixation of salary and consequential fixation of pension at a reduced rate than to which they are entitled. 2. The petitioner in W.P.(C) No.6406/2005 retired from service as Photocopier/Duplicator Operator on 31.10.2004. He joined the service of the University as a Watchman on 5.8.1978 and was promoted as Peon after 1 ½ years in the same scale of pay. He was promoted as temporary clerical attender on 24.3.1992 and was appointed in the permanent vacancy of Photocopier/Duplicator Operator in the scale of pay of Rs.950-1500. By Ext.P1 representation, he sought for grant of scale of pay of Rs.1350- 2200 by including the post held by him in the technical cadre. Ext.P2 is the order of the University dated 28.1.1997 whereby the said request was granted and the scale of Rs.1050-1660 was allowed. At the time of retirement he was drawing the revised scale of Rs.4500-7000. 3. Ext.P4 is the order sanctioning pensionary benefits, whereby the wpc 6406/05 & 6809/05 2 petitioner was granted the same at a reduced rate. It is based on certain audit objections. He filed Ext.P5 representation which was replied by Ext.P6. Ext.P7 is the liability certificate fixing liability to the tune of Rs.23,505/- and these are under challenge in this writ petition. 4. In W.P.(C) No.6809/2005, the petitioner retired from service on 30.11.2004 as Peon Special Grade in the Department of Electronics. He started his career as Peon in the year 1972 and was granted the Special Grade on 28.3.1984. Ext.P1 is the order fixing the pay of the petitioner at Rs.348/- with effect from 13.3.1984 and it was refixed at Rs.354/- with effect from 1.7.1984. He was granted higher grade at Rs.865-1450 on completion of 20 years of service with effect from 29.11.1992. Ext.P3 is the order by which time bound higher grade was granted on completion of 25 years of service. On the basis of his option, Ext.P4 was issued by the University and accordingly he was drawing a scale of Rs.4500-7000 ( revised scale) at the time of retirement. Ext.P5 is the order sanctioning pensionary benefits, at a reduced rate, which was followed by Ext.P6 Pension Payment Order. Ext.P7 is the copy of the representation and Ext.P8 is the order by which an amount of Rs.93,500/- has been fixed as liability. 5. The respondents have filed counter affidavits in the matter. It is wpc 6406/05 & 6809/05 3 averred in para 5 of the counter affidavit filed in W.P.(C) No.6406/2005, that as per the time bound higher grade scheme introduced in the University, the employees were eligible for time bound higher grades on completion of 7, 15, 20 and 25 years of service. This was objected by the Government Audit Agencies citing that the employees under the Government were eligible for three grades only on completion of 10, 18 and 23 years of service and the University scheme is against the Government pay revision orders. It is further averred that efforts were taken by the University to settle the audit objection once and for all by making repeated requests to the Government to waive the audit objections in case of employees to whom grades have already been granted. It is pointed out that the Government did not waive the same and the University had to recover the excess amount from the pensionary benefits. 6. In the counter affidavit filed in W.P.(C) No.6809/2005 also, it is averred that the pattern was adopted by the Syndicate after accepting the demands raised by the employees. 7. Heard learned counsel for the petitioners and the learned Standing Counsel for the University. Learned Standing Counsel for the University submitted that subsequent to the filing of the writ petitions, the Syndicate of wpc 6406/05 & 6809/05 4 the University in its meeting held on 19.7.2008 resolved to release the withheld amount of DCRG of all the employees who retired from the University service and accordingly the withheld amount has been released to the petitioners. 8. Learned counsel for the petitioners submitted that similar writ petitions filed by other employees have been allowed by this court and mention is made about the judgments in W.P.(C) Nos.11580/2009, 9038/08 and 11877/09. In the above decisions, this court relied upon the judgment of a learned Single Judge of this Court in W.P.(C) No.5908/2005 wherein, after considering the facts of the case, it was held thus: “From the above facts, it is clear that petitioner was given the benefits based on a Syndicate decision as evidenced by Ext.P1 dated 13/05/2002. The Syndicate is the competent authority as empowered under the Statute and its decision is well within its jurisdiction. As per the counter affidavit also, the University took up the matter with the Government to waive the Audit Objection. The only reason for issuing Ext.P6 is based on an audit objection and the Government did not agree with the wpc 6406/05 & 6809/05 5 view of the Syndicate. But the fact remains that the decision in Ext.P1 is not yet revoked or cancelled by any subsequent decision of the Syndicate. No materials whatsoever is also placed cancelling such decision. So long as Ext.P1 stands and payment having been effected based on the Syndicate decision, the question arises as to how any recovery could be made and any liability could be fastened based on a mere audit objection.” 9. This Court was therefore, of the view that the competent authority is Syndicate which is empowered to take a decision on the matter and unless that is replaced by a fresh decision, the liability cannot be fastened after retirement based on a mere audit objection. The decision of the Division Bench in Sreedharan v.Union of India [2002 (1) KLT 444] was also relied upon. I respectfully, agree with the same. In the judgment in W.P.(C) No.11580/2009, the same judgment has been relied on. 10. In the light of the above, the petitioners are entitled to succeed in these writ petitions. The petitioners are favoured by a decision of the Syndicate that Higher Grades granted to the employees upto 27.12.2003 was according to their decision and that was justified. They have also wpc 6406/05 & 6809/05 6 sought to drop the audit objection. In that view of the matter, the objections raised by the Audit cannot be sustained. The writ petitions are therefore allowed. Ext.P4 in W.P.(C) No.6406/2005 and Exts.P5 and P8 in W.P.(C) No.6809/2005 to the extent they deny full pension and other retiral benefits, are quashed. There will be a direction to the respondents to revise and refix the due pensionary benefits to the petitioners in terms of the pay fixation effected from time to time. The monetary benefits shall be disbursed within a period of three months from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/