IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 WP(C).No. 1417 of 2009(R) PETITIONER: --------------- TOMICHAN JOSEPH, S/O. CHACKO JOSEPH, SELECTION GRADE LECTURER,DEPARTMENT OF COMMERCE, K.E.COLLEGE, MANNANAM, KOTTAYAM DISTRICT. BY ADV. SRI.J.OM PRAKASH RESPONDENTS: --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, TRIVANDRUM. 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM. 4. THE SUB TREASURY OFFICER, GANDHI NAGAR, KOTTAYAM. 5. THE PRINCIPAL, K.E.COLLEGE, MANNANAM. GOVERNMENT PLEADER SRI.A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 1417 OF 2009 R ------------------------------------------------------ Dated this the 14th January, 2009 JUDGMENT The petitioner is working as Selection Grade Lecturer in K.E.College, Mannanam. It is stated that D.A arrears are due to the teachers as per various Government Orders. The arrears of DA sanctioned as per the above Government Orders were directed to be credited to the provident fund account of the employees. It is stated that the Principal (fifth respondent) has submitted the bill for DA arrears to the Deputy Director of Collegiate Education (third respondent) for countersignature. It is stated that when the bill was prepared the income tax to be deducted from arrears of DA was specifically shown therein. Ext.P4 communication dated 9.1.2009 was issued by the Deputy Director of Collegiate Education to the Principal of the College stating thus: “As Govt. is against the I.T. deduction from DA arrears a fresh judgment for the individual college may be furnished.” 2. In a similar case, in respect of DA arrears, this Court had issued directions in the judgment dated 7.2.2005 in W.P.(C) No.4232 of 2005, The directions issued therein are the following: W.P.(C) NO.1417 OF 2009 :: 2 :: “1. When bills are prepared in respect of the arrears payable consequent to Government Orders, the Principals of the Institutions should ensure that the income tax that might be payable in respect of the payments are to be separately shown and it should be ensured that the same be remitted in the Treasury so as to meet the requirement of payment of income tax in respect of the payment of the benefits. 2. In any case, the liability of the petitioners for payment of tax, should be adequately and completely met with and they are not to be exposed to any risk. 3. The Treasury Officer concerned should see to it that there is no difficulty for ensuring such compliance, and necessary guidance may be given if sought for. 4. The balance amount is to be credited to the Provident Fund Account of the petitioners. The remittance as above would be liable to be appropriately taken notice of at the time of submission of return and assessment of the individual concerned.” That judgment was followed by me in W.P.(C) No.18059 of 2008. 3. The grievance voiced by the petitioner is genuine. He does not dispute the liability to pay income tax on the amount of DA arrears. The petitioner only wants that the Income Tax payable on DA arrears should be taken from DA arrears itself and only the balance should be deposited in the Provident Fund Account. To my mind, he is entitled to say so and the Government is not entitled to deny the same. The learned Government Pleader submitted that under the cover of this claim, salary bills are being presented permitting persons like the petitioner to deduct the entire income tax liability from the DA arrears and that such claim for W.P.(C) NO.1417 OF 2009 :: 3 :: deduction does not pertain to DA arrears alone. In such cases, the appropriate authority may direct fresh salary bills be presented if the deduction sought does not pertain to DA arrears alone. 4. In view of the directions issued in W.P.(C) No.4232 of 2005 and W.P.(C) No.18059 of 2008 and also in the light of the contentions put forward by the petitioner and the submissions made by the learned Government Pleader, I am of the view that Ext.P4 is liable to be quashed. I accordingly quash Ext.P4. The petitioner is entitled to get deduction of Income Tax on the DA arrears payable to him. After deducting the Income Tax payable on the DA arrears, the balance alone should go to the Provident Fund Account. In other words, the entire DA arrears should not be credited to the Provident Fund Account. The petitioner should not be burdened with the liability to pay Income Tax payable on the DA arrears out of his salary, but it should be carved out from the DA arrears. If bills are presented accordingly, the third respondent shall countersign such bills expeditiously. 5. I hasten to add that the Deputy Director of Collegiate Education, Kottayam was not justified in making the endorsement, as was done in Ext.P4, directing the petitioner or the Principal of the College to get a similar judgment as was rendered in other cases. It was for the W.P.(C) NO.1417 OF 2009 :: 4 :: petitioner to decide whether he should approach the Court or not. The question was whether the Income Tax could be deducted. This Court had taken the view as is reflected in several other judgments. I do not think, it is necessary for the respondents to expect a similar judgment in respect of the case. Any how, I am not expressing any final opinion in the matter as the facts may vary in different cases. The Writ Petition is allowed with the above directions. (K.T.SANKARAN) Judge ahz/