IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 WP(C).No. 9094 of 2004(R) ----------------------------------- PETITIONER(S): ------------------------ MOIDEEN MULLAPPALLI, PEON, JUDICIAL FIRST CLASS MAGISTRATE COURT-V, KOZHIKODE. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REP. BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM. 3. THE REGISTRAR OF HIGH COURT, KOCHI. 4. CHIEF JUDICIAL MAGISTRATE, KOZHIKODE. 5. JUDICIAL FIRST CLASS MAGISTRATE-V, KOZHIKODE. R1 TO R5 BY GOVERNMENT PLEADER SRI.A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.9094/2004 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE AUDIT OBJECTION SUBMTITED BY 2ND RESPONDENT DTD. NIL. P1(A):- COPY OF THE OBJECTION FILED BY THE PETITIONER AGAINST EXT.P1 DT. NIL. P2:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE SIT RESPONDENT DTD. 7.8.01. P3:- COPY OF THE GOVERNMENT ORDER DTD. 2.1.01. P4:- COPY OF THE LETTER DTD. 2.12.03 ISSUED BY THE GOVERNMENT TO THE 3RD RESPONDENT. P5:- COPY OF THE OFFICIAL MEMORANDUM ISSUED BY THE 4TH RESPONDENT DTD. 10.2.04. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.9094/2004-R ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 8th day of June, 2010 J U D G M E N T Aggrieved by the recovery proceedings to recover an amount of Rs.7,924/-, paid as excess salary, this writ petition has been filed. 2. The petitioner was appointed as Peon on 21/07/1988 at the District Court, Kalpetta. He was later promoted as Process Server with effect from 02/08/1988 and the salary was fixed at Rs.775/- under Rule 28A Part I K.S.R. Later, he got inter district transfer on his application to Calicut and, he joined duty as Peon on 15/07/1996. There, the petitioner drew the salary in the post of Process Server. Subsequent increments were also sanctioned. This was found out in an audit and, an objection was raised as per Ext.P1. The excess pay for the period from 15/07/1996 to 31/08/2000 was sought to be recovered, against which he filed Ext.P2 representation. The matter was clarified as per Ext.P4 letter, whereby it was held that the protection of pay as per 3rd proviso to Rule 28A or 37(b) Part I K.S.R is not applicable to the petitioner as he was willingly reverted as Peon for the purpose of inter district transfer. The request made to waive the excess salary was also rejected as evidenced from Ext.P5. W.P.(C). No.9094/2004 -:2:- 3. It is contended by the learned counsel for the petitioner that the orders are clearly illegal in the light of the decision of this Court in Jayasree v. State of Kerala [2002 (3) KLT 803]. 4. It is pointed out by the learned Government Pleader that the matter is covered against the petitioner by a decision of a Division Bench of this Court in Santhakumari v. State of Kerala [2005 (4) KLT 649]. In paragraph (5), Their Lordships have 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 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. W.P.(C). No.9094/2004 -:3:- Consequently same has to set right in public interest unless there is statutory bar in recovering the amount.” 5. In the light of the above, it cannot be said that the petitioner is not liable to refund the excess salary paid to him by mistake. Evidently, it is a case where the petitioner was transferred on his request to the lower post of Peon. Therefore, he was not entitled for the protection of pay. Without noticing this fact, the amount was paid to him, obviously, under the mistake. In that view of the matter, the challenge against Exts.P1, P4 and P5 fails and the writ petition is dismissed. 6. It is submitted that the petitioner has since retired from service but the D.C.R.G has been withheld because of the recovery ordered against him. Therefore, the amount of D.C.R.G due to the petitioner after adjusting the amount of Rs.7,924/- which was paid as excess salary will be disbursed within a period of two months from the date of receipt of a copy of this Judgment. No costs. (T.R. Ramachandran Nair, Judge.) ms