IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 RP.No. 608 of 2006(A) --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.14285/2002 .................... REVIEW PETITIONER(S): REVIEW PETITIONER/PETITIONER --------------------------------------------- K.P.VENUGOPAL, III GRADE OVERSEER (H.G.), PUBLIC WORKS DEPARTMENT, SPECIAL BUILDING SUB DIVISION, MULAMKUNNATHU KAVU, VALAPPAYA P.O., THRISSUR. BY ADV. SRI.N.SUGATHAN RESPONDENT(S): RESPONDENTS --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, SPECIAL BUILDINGS SUB DIVISION, T.B.ROAD, THRISSUR. 3. THE ACCOUNTANT GENERAL (AUDIT), KERALA, THIRUVANANTHAPURAM. 4. THE SENIOR AUDIT OFFICER, ACCOUNTANT GENERAL (AUDIT), KERALA, BRANCH OFFICE, THRISSUR-680 020. GOVERNMENT PLEADER SRI. RAVINDRA BABU THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 25/06/2009, THE COURT ON 01/07/2009 PASSED THE FOLLOWING: R. BASANT & V. RAMKUMAR, JJ. * * * * * * * * * * * * * * * * * * R.P. No. 608 of 2006 * * * * * * * * * * * * * * * * * * Dated this the 1st day of July 2009 ORDER Ramkumar, J. This is a petition to review the judgment dated 14-6-2006 rendered by a Division Bench of this Court in O.P. 14285/2002. 2. We heard the learned counsel for the petitioner as well as the learned Government Pleader. 3. The petitioner was appointed as Third Grade Overseer in the Public Works Department on 15-5-1987 pursuant to the advise dated 3-2-1987 of the Kerala Public Service Commission. Prior to that, on the advice of the employment exchange, the petitioner was working as a Works Superintendent in the Public Health Engineering Department on a provisional basis from 7-9- 1981. Consequent on the establishment of the Kerala Water Authority with effect from 1-4-1984 replacing the Public Health Engineering Department, the petitioner continued in the said provisional service in the Kerala Water Authority until he entered R.P. No. 608 of 2006 -:2:- Government service as Third Grade Overseer in the Public Works Department on 15-5-1987 as aforesaid. Therefore, his provisional service under the Kerala Water Authority was not liable to be counted for the purpose of increments or higher grade in view of Note 2 to Rule 28 of Part I, K.S.R. Consequently, the increments granted to him by the departmental authority (Asst. Executive Engineer, K.I.P. (MCS) Sub Division No. 24 Noornad) as per Ext.P1 order dated 24-1-1989 by recourse to Government decision No. 2 under Rule 33 of Part I K.S.R., which was inapplicable to the petitioner and the higher grade sanctioned as per Ext.P3 and P4 orders, were impermissible in law. If so, Ext.P7 Audit Enquiry Report (of the Audit Party of the Accountant General conducting the audit in the year 2001) objecting to Ext.P1 order and re-fixing the pay admissible to the petitioner for the period from May 1987 to September 2001 and directing recovery of a sum of Rs. 97631/- drawn by the petitioner in excess of the pay and allowances, was perfectly in order. We do not find any good ground to review that part of the judgment dated 14-6-2006 by the Division Bench upholding Ext.P7 Audit Enquiry Report. 3. The further submission made by the learned counsel for R.P. No. 608 of 2006 -:3:- the petitioner is that the Division Bench failed to consider his alternative contention that even if Ext.P7 report was to be upheld, the petitioner who had no role to play in the granting of increment and higher grade could not be penalised with a direction to refund the excess amount already drawn for the error committed by his departmental authority. In as much as the petitioner had raised this contention before the Division Bench of which one of us (V. Ramkumar, J) was a member and also since the above contention was specifically raised in Ground No.F of the Writ Petition, we were inclined to hear the learned counsel on the said contention. 4. The learned counsel for the petitioner made the following submissions in support of his plea that the direction to refund the excess amount was liable to be set aside:- The pay fixation, though erroneous, was made in the year 1989. It was in the year 2001 that Ext.P7 audit report was made and endorsed to the departmental authority. The petitioner has only 5 more years of service. Ext.P3 order of pay fixation and the orders sanctioning higher grades to the petitioner were passed by the departmental authority without any application or request from the petitioner. If at this stage of his tenure the sum of Rs. R.P. No. 608 of 2006 -:4:- 97631/- were to be recovered from him through adjustments in his salary, it will be harsh, unjust and cruel. In Satyapalan v. Deputy Director of Education – 1998 (1) KLT 399 a learned Single Judge of this Court observed as follows:- “6. The petitioners were granted increment on promotion as H.S.A. by the department, taking into account, the temporary service which ought not to have been counted for increment. It is far later that, based on an audit objection, Exts.P3 and P4 were issued to cancel the grant of increment and for consequent pay fixation. The petitioners were not at fault in granting the increment, it is the administrative authority which granted the increment counting the period which could not have been counted. Therefore, it is arbitrary to mulct the petitioners with the liability to refund the amount which they obtained by reason of a wrong fixation of pay made by the administrative authority for the period up to 1984. Therefore, that part of Exts. P3 and P4 directing refund of the alleged excess amount drawn, as confirmed in Exts.P13 and P14, is quashed. It is further made clear that the petitioners are not entitled to the increment counting the temporary service; but the excess pay cannot be directed to be refunded until the date of Exts.P13 and P14. The respondents are liable to re fix the pay of the petitioners without any liability for refund up to the date of Exts.P13 and P14.”. In Aleyamma Varghese v. Secretary General Education Department – 2007 (3) KLT 700 (SC) the Apex Court issued the following direction:- “ 6. A mistake apparent on the face of the record may be rectified R.P. No. 608 of 2006 -:5:- but in a matter of this nature, we would expect the State to react more magnanimously and not resort to recovery proceedings after a period of 17 years. We, therefore, in the peculiar facts and circumstances of this case, are of the opinion that with a view to do complete justice to the parties, the amount sought to be recovered may not be recovered from the appellant and we direct accordingly. The impugned judgment is set aside and the appeal is allowed with the aforesaid observations and directions”. In Babulal Jain v. State of M.P. 2007 (6) SCC 180 the Apex Court reiterated the principle as follows: “We, however, are of the opinion that in a case of this nature, no recovery should be directed to be made. The appellant has discharged higher responsibilities. it is not a case where he obtained higher salary on committing any fraud or misrepresentation. The mistake, if any, took place on a misconception of law. He was at least entitled to some allowances, in re-fixing his pay, his claim to that effect has not been considered. He has since retired. a sum of Rs. 22,000/- has been recovered from him. Such recovery has been effected without issuing any show-cause notice. His case on merit in this behalf had not been considered by the Government and even by the Tribunal”. That was a case where an Accountant in the Collectorate was placed on deputation to the post of Election Supervisor by the District Collector and over and above the allowances attached to that post, his pay was also fixed in the higher scale applicable to the post of election Supervisor to which he was not promoted but R.P. No. 608 of 2006 -:6:- only posted on deputation. In Narayanan v. State of Kerala – 2008 (3) KLT 188, a Division Bench of this Court, following Aleyamma Varghese and Babulal (supra) held as follows:- “It is submitted that the petitioner herein received notional pay as a teacher. If the excess pay fixed in 1989 onwards is recovered from the petitioner's retiral benefits, it will be a very heavy blow on him. on the facts and circumstances of this case we are of the view that the excess amount paid by the Government on mistake, on the basis of wrong fixation, should not be recovered. The appeal is allowed to the above extent”. 5. We are afraid that we do not find ourselves persuaded by the aforesaid decisions which have to be understood in the peculiar facts situation obtained in those cases. Aleyamma's Case was actually one rendered for doing complete justices to the parties and presumably a case decided under Article 142 of the Constitution of India and that decision is strictly not law declared by the Supreme Court within the meaning of Article 141 of the Constitution of India. According to us, the correct principle is discernible from the judicial pronouncements to be adverted to hereinbelow. In Rose v. State of Kerala – 2004 (1) KLT 934, a learned Single Judge of this Court had to pointedly consider a similar question . This is what the head note of the decision reads:- R.P. No. 608 of 2006 -:7:- “The requirement for inspection, audit etc., mandatorily to be followed, is to ensure that funds are expended, as authorised by law. It is difficult to accept the contention of the petitioner, that such processes are only for a satisfaction, and in case of every excess payments, the Government is disabled from demanding this over payments back. If an officer is denied any benefits, he has a right to insist for payments. Likewise, he owes a duty to pay back the excess received by him. The plea that amounts paid are appropriated, and one may find it difficult to pay it back, can only be a self serving argument, and not equitable. Consequent to adjustments, after rectification of errors, such excess payments are recoverable. That it came to him without his effort cannot be a safe yardstick. The irregular payment cannot also be considered as property legally earned by him. Intervention or connivance of the officer concerned, according to me, is immaterial. The ultimate principle appears to be that the officer will be entitled to the benefits which are extended by the orders and not excess amounts than that was envisaged. In matters of revision of emoluments, beneficial interpretation has to operate, but that does not justify salvaging irregular disbursement”. In United India Insurance Co. Limited v. Roy - 2005 (2) KLT 63 a Division Bench of this Court observed as follows:- “Facts would evidently show that payment was made by mistake contrary to the direction given by the General Insurance Company of India, which all the Insurance Companies are bound to follow. Mistake evidently has been crept in the Divisional Office. Divisional Officers and other offices are under the control of the United India Insurance Company transacting large volume of business all over the R.P. No. 608 of 2006 -:8:- country. It is a large organization where several employees are working and large volume of work is being transacted. In such a situation, human error at times cannot be avoided. Nobody could expect an ideal situation without any error or mistake in the matter of administration. Due to inadvertence or otherwise a mistake has been committed which can always be corrected. Duty is cast not only on the administrators but on the beneficiary of the mistake to correct the error. The beneficiary is also part of the administration like the person who has committed the mistake. Writ Petitioner cannot make a capital out of a mistake committed by his colleague in the office. Circular issued by the General Insurance Corporation of India is applicable not only to the administrators but to the beneficiary of the mistake also. So mistake can be corrected not only by the administrators but also by the beneficiaries” Again,in Santhakumari v. State of Kerala - 2005 (4) KLT 649 a Division Bench of this Court overruling the decision of a learned Single Judge in Sivankutty Nair v. Secretary to Government – 2005 (3) KLT 512 and affirming Rose's case - 2004 (1) KLT 934 held as follows:- “5. In our view, if an employee has received any amount contrary to a statutory provision the mistake is mutual since the administration as well as the employee is bound by the statutory provision. Paying and receiving the amount contrary to the statutory provision is illegal. When a mistake is mutual that has to be shared by both the parties. Law would nullify such an action if the parties are mistaken on the same fact situation. In a case where the mistake is mutual, both the parties act on the same mistaken R.P. No. 608 of 2006 -:9:- assumption. Person who pays the amount is on the legitimate belief that the person who receives the amount is entitled to receive it and the person who receives the amount is on the belief that he is entitled to receive the same. Mistake in such a situation, in our view, is mutual. Consequently same has to be set right in public interest unless there is statutory bar in recovering the amount. xxx xxx Petitioner is also not entitled to retain the money in equity. Lord Mansfiled in Tower v. Barrett (1786) ITR 133 held: “I am a great friend of the action for money paid and received. It is a very beneficial action and founded on the principle of eternal justice”. Petitioner has been enriched by the receipt of a benefit and the enrichment is at the expense of public and retention of that public money is unjust. Person who receives Government money has to keep it as a trustee and pay back the money if it is found that he keeps the money illegally”. It is true that in Narayanan's case the Division Bench of this Court following Aleyamma's Case had held that excess pay granted to the teacher should not be recovered. The Division Bench further held that eventhough Sivankutty Nair's case was overruled by a Division Bench of this Court in Santhakumari's case, in appropriate cases relief could be granted by not recovering the amount. But on the facts and circumstances of the R.P. No. 608 of 2006 -:10:- case we do not find anything in the case on hand to treat it as an appropriate case warranting an order in favour of the petitioner. 6. As observed in 2005 (2) KLT 63 (supra) to err may be human and to correct the error may also be human. But we would add “To err may be human; but failing to correct the error or retaining the ill gotten gains without any gesture to disgorge the same is inhuman”. 7. If the petitioner were to be permitted to retain the service benefits legitimately not due to him and undeservingly received by him, it would not only by contrary to the legal provisions already adverted to, but also would mean that he can take up ignorance of law as an excuse. Moreover, such a permission would amount to putting a premium on dishonesty. All that apart, such a gesture either on the part of the Government or on the part of the Court would send a wrong message to law- abiding Government servants who are to remain content with what is legitimately due to them. It is pertinent to remember that the State is recovering only the actual pecuniary gain wrongly enjoyed by the petitioner. Interest or penal interest on such amounts, is not sought to be realised from him. If the employer cannot recover even that, there would be no meaning in the rule of law. We, R.P. No. 608 of 2006 -:11:- therefore, do not find any justification behind the plea for absolving the petitioner from paying back the unjust enrichment made by him over the years. This revision petition is accordingly dismissed. Dated this the Ist day of July 2009. R. BASANT, JUDGE V. RAMKUMAR, JUDGE ani.