IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 WP(C).No. 9677 of 2007(B) ------------------------- PETITIONER(S): --------------- D.VIJAYAMMA, W/O.P.KRISHNANKUTTY, VIJAYA BHAVAN, NEDUMANGADU VILLAGE, WORKING AS CONFIDENTIAL ASSISTANT (RETIRED) KERALA LIVESTOCK DEVELOPMENT BOARD LTD., GOKULAM, PATTOM, TRIVANDRUM. BY ADV. SRI.T.K.ANANDA PADMANABHAN RESPONDENT(S): --------------- 1. KERALA LIVESTOCK DEVELOPMENT BOARD LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, "GOKULAM", PATTOM, THIRUVANANTHAPURAM-04. 2. THE STATE OF KERALA,REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF AGRICULTURE, THIRUVANANTHAPURAM. ADV. SRI.MILLU DANDAPANI FOR R1 GOVERNMENT PLEADER SRI. ANTONY MUKKATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/09/2010, THE COURT ONTHE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C. NO. 9677/2007 --------------------------------------------------------------------- EXT.P1 COPY OF AWARD DT. 21-5-1984. EXT.P2 ORDER OR REINSTATEMENT DT. 14.3.1985. EXT.P3 ORDER OF FIXATION OF PAY DT. 22.10.1987. EXT.P4 REGULARIZATION ORDER DT. 9.11.1995. EXT.P5 ORDER DT. 8-5-1996. EXT.P6 ORDER DT. 30.3.1998. EXT.P7 COPY OF JUDGMENT DT. 6.11.1998. EXT.P8 JUDGMENT DT. 22.9.2003. EXT.P9 LETTER DT. 13.12.2005. EXT.P10 LETTER DT. 16.11.2005. EXT.P11 ORDER DT. 1.8.2006 [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 9677 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 8th day of September, 2010. J U D G M E N T On 6.12.1978, the petitioner joined service of the 1st respondent as a Stenographer Gr. II. On 2.11.1979, the services of the petitioner were terminated. The petitioner raised an industrial dispute against the termination of the petitioner's service, which was adjudicated as I.D.No. 44/80 by the Labour Court, Kollam By Ext. P3 award dated 22.10.1987, the Labour Court directed reinstatement of the petitioner with all service benefits except back wages. Pursuant thereto, the petitioner was reinstated in service by order dated 14-3-1985. Subsequently, by Ext. P4 order, the Government directed regularization of the service of the petitioner with effect from 6-12- 1978. Still, the petitioner was not given her service benefits for the period during which the petitioner was kept out of service. The petitioner therefore challenged the orders passed in this regard refusing the benefits, by filing O.P.No. 10484/1998, in which, by Ext. P7 judgment, the orders passed against the petitioner were quashed and the respondents were directed to extend all the service benefits to her except back wages as ordered by the Labour Court. Since it was not done, the petitioner filed Contempt of Court Case No. 172/1999 in which, by Ext. P8 order, this Court closed the contempt case with the following direction: “Heard counsel appearing for the petitioner and Mrs. Sunitha Vinod, counsel for respondent. 2. Grievance raised in this contempt case could be made known to the officer concerned so that the grievance could be taken note of by him and appropriate orders be passed in accordance with law. This judgment, however, will not prevent the petitioner from moving for contempt if the order is not effectively complied with. This contempt case is closed.” W.P.C. No. 9677/2007. -: 2 :- 2. In the meanwhile, the petitioner had retired from service in 2000. In respect of payment of retirement benefits to the petitioner, there arose a dispute. Ultimately, it was admitted that the petitioner is entitled to an additional amount of Rs. 35,364/-. But, for paying the same, by Ext. P9 order, the 1st respondent insisted on the petitioner paying an amount of Rs. 95,249/- alleged to be excess payment made to the petitioner. Along with the same, Ext. P10 dated 16.11.2005 was also issued, wherein a calculation of amounts due to the petitioner has been given. But, in respect of the amount of Rs. 95,249/-, no details were given. In respect of the same, the petitioner filed Complaint no. 2180/2005 before the Kerala Lok Ayukta, which was later on withdrawn by Ext. P11 order without prejudice to the petitioner's right to move the appropriate forum for getting her grievances redressed. It is pursuant to the same the petitioner has filed this writ petition seeking the following reliefs: “A. To call for the entire records leading to the issuance of Ext. P9 and P10 orders and issue a writ of certiorari or any other appropriate writ, direction or order in the nature and quash the same. B. Issue a writ of mandamus or any other appropriate writ, order or direction in the nature directing the 1st respondent to disburse all benefits legally due to the petitioner after proper fixation of pay.” 3. Learned counsel for the petitioner submits that the petitioner would now confine her relief for a direction for payment of Rs. 35,364/- without insisting on payment of the amount of Rs. 95,249/- demanded from the petitioner allegedly towards excess payment made to the petitioner, which she disputes. According to the petitioner, the period from 3-11-1979 to 18-3-1985, during which the petitioner had been kept out of service, had not been computed for W.P.C. No. 9677/2007. -: 3 :- the purpose of fixation of pay and consequent retirement benefits and that is the reason for the demand now. According to the petitioner, Ext. P9 was issued 5 years after the retirement of the petitioner and the petitioner has not been made aware of any details regarding the demand made. Therefore, according to the petitioner, the petitioner is not liable to pay any amount to the 1st respondent as demanded. 4. A counter affidavit has been filed, wherein it is asserted that the petitioner is liable to pay the said amount of Rs. 95,249/- towards excess pay drawn by her. Therefore, according to the 1st respondent, the petitioner can be paid the amount of Rs. 35,364/-, if the petitioner remits the excess amount of Rs. 95,249/- drawn by her during her service. The 2nd respondent has also filed a counter affidavit supporting the 1st respondent's case. 5. I have considered the rival contentions in detail. 6. I have searched all the documents before me and the counter affidavits to ascertain what is the amount of Rs. 95,249/- demanded by the 1st respondent represents. I couldn't. Even in the counter affidavit, no details are forthcoming as to what exactly this amount represents. What has been stated in the counter affidavit is that a memo No. 1063/98/PM-B dated 27.2.1999 was issued to the petitioner in respect thereof. The 1st respondent has not chosen to produce a copy of that memo to substantiate the claim of the 1st respondent. It is for the 1st respondent to convince this Court that the petitioner is liable to pay any amount to the 1st respondent as a condition for disbursement of the balance retirement benefits due to the petitioner. I am of opinion that the 1st respondent has sadly failed to do so. Further, if a memo dated 27-2-1999 has been issued to the petitioner the said amount could have been recovered from the petitioner while she was still in service till 2000. No explanation is forthcoming as to W.P.C. No. 9677/2007. -: 4 :- why it has not been done. In fact, they took six more years to issue Ext. P9 demand in that regard. In the above circumstances, I am not prepared to accept the contention of the 1st respondent that the said amount is due from the petitioner. In any event, after 5 years of the petitioner's retirement, the same cannot be recovered from the petitioner. In the above circumstances, I am satisfied that the petitioner cannot be compelled to pay the amount of Rs. 95,249/- allegedly paid in excess to the petitioner. 7. Accordingly, Exts.P9 and P10 are quashed. The respondents are directed to pay to the petitioner the amount of Rs. 35,364/- with 6% interest thereon from the date of the petitioner's retirement. The same shall be paid within one month from today. In view of the fact that the petitioner has been harassed throughout her service, I was inclined to award costs also. But, exercising restraint, I refrain from doing so. The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/