IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 WA.No. 1176 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.21595/2004 Dated 03/02/2009 .................... APPELLANT/PETITIONER ------------------------ M.L.GOERGE, DRIVER (RETIRED), KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVALLA, MELEKKARAN, MEMANA HOUSE, VELLAYIL.P.O THEEYADICKAL, THIRUVALLA. BY ADV. SRI.O.D.SIVADAS SRI.P.P.SOMAN NAIR RESPONDENTS/RESPONDENT: --------------------- 1. KERALA STATE ROAD TRANSPORT CORPORATION, TYRANSPORT BHAVAN, FORT.P.O., TRIVANDRUM, REP. BY ITS MANAGING DIRECTOR. 2. THE EXECUTIVE DIRECTOR(A), K.S.R.T.C., TRANSPORT BHAVAN, FORT.P.O., TRIVANDRUM. 3. THE DISTRICT TRANSPORT OFFICER, K.S.R.T.C., THIRUVALLA. SRI. K.PRABHAKARAN, SC, KSRTC. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A. No.1176 OF 2009 ------------------------------- Dated this the 17th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant is the writ petitioner. He was a driver working in the KSRTC. He retired from service on 31.1.2004. The Writ Petition was filed by him challenging Exts.P3, P4, P5, P7 and P8 proceedings, as per which steps were taken to recover the excess pay and allowances paid to him as a result of wrong fixation of pay granted to him in 1986. 2. The brief facts of the case are the following: The appellant joined the service of the Kerala State Road Transport Corporation (for short 'KSRTC') on daily wage basis. He completed 240 days' service and therefore, he was put on probation notionally with effect from 17.1.1984. By the time, the said order was issued, he already availed leave without allowance from 31.12.1984 and went abroad. Though the leave was granted for 5 years, he returned and rejoined duty on 29.9.1986. Soon, thereafter, the Unit Officer granted his 1st increment, W.A.No.1176/2009 2 taking into account the service rendered by him notionally from 17.1.1984 to 31.12.1984 also. The said mistake was noticed in 1987 itself. But, it appears the same was waived by the Manager, Personal and Administration, as evident from Ext.P1. Later, the matter was reopened at the instance of the Executive Director and the present impugned proceedings were issued. As per the direction of this Court, the matter was reconsidered by the Managing Director and again his claim was rejected by Ext.P7. The Writ Petition was filed challenging those proceedings. The KSRTC filed a counter affidavit stating that he was granted increment wrongly taking into account his period of service from 17.1.1984 to 31.12.1984, as at the relevant time he was on leave without allowance. 3. The learned Single Judge considered the rival contentions and found that the initial fixation of pay while granting the 1st increment was wrongly made. The learned Single Judge also overruled the contention of the appellant that even assuming the re-fixation is correct, still excess amount should not be recovered, as it was paid long ago. The learned Single Judge found that there was no delay in taking action W.A.No.1176/2009 3 against the appellant and therefore, the recovery was justified. Aggrieved by the above judgment, this Writ Appeal is filed. 4. In view of Rule 5 of Appendix XIIA of the Kerala Service Rules, a probationer, who goes on leave availing leave without allowances has to start probation afresh on rejoining duty. So, for getting increment, he will have to complete one year's service from the date of rejoining. He cannot count his past service for any service benefits. Therefore, the re-fixation of the pay of the appellant was rightly done. The next point raised for decision, is whether the appellant can keep the benefits obtained by the wrong fixation of pay. The learned Single Judge declined the said relief on the ground that there was not any delay in taking action. The learned counsel for the appellant challenges that finding. Even assuming, there is delay, we feel that the appellant should not be permitted to keep public money wrongly received by him. His case cannot be equated with that of a low paid employee like a sweeper/cleaner. This view taken by us is supported by the decision of this Court in Santhakumari. v. State of Kerala [2005(4) KLT 649]. So, the KSRTC has rightly taken action against the appellant to W.A.No.1176/2009 4 recover the public money wrongly paid. In the result, we affirm the judgment of the learned Single Judge and dismiss the Writ Appeal. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps