IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 WP(C).No. 12167 of 2006(S) -------------------------------------- OA.443/2003 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH. .................... PETITIONER: ------------------- VISWANATHAN N.G., S/O. GOPINATHAN, LOWER DIVISION CLERK, EMPLOYEES PROVIDENT FUND ORGANISATION, KOTTAYAM (NOW WORKING AT SUB REGIONAL OFFICE, E.P.F.ORGANISATION, OLD MUNICIPAL BUILDING, KOLLAM-1). BY ADV. MR.P.K.MADHUSOODANAN. RESPONDENTS: ----------------------- 1. UNION OF INDIA, REP. BY THE SECRETARY, MINISTRY OF RAILWAYS, RAIL BHAVAN, NEW DELHI. 2. THE RAILWAY BOARD, REP. BY ITS SECRETARY, RAIL BHAVAN, NEW DELHI. 3. THE REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION, SUB REGIONAL OFFICE, CMS COLLEGE, KOTTAYAM-1. 4. THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH, REP. BY ITS REGISTRAR. R1 & R2 BY ADV. MR. T.P.M.IBRAHIM KHAN,SR.SC, RAILWAYS, R3 BY ADV. MR. JOY THATTIL ITOOP, SC, EPF ORGANISATION. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.12167/2006-S: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE O.A. NO. 443/03 FILED BY THE PETITIONER BEFORE R.4. EXT.P.2: COPY OF THE ORDER DTD. 29/05/2003 IN O.A. NO. 443/03 PASSED BY R.4. EXT.P.3: COPY OF THE REPLY STATEMENT IN O.A. 443/03 FILED BY RESPONDENTS 1 AND 2. EXT.P.4: COPY OF THE REPLY STATEMENT FILED BY THE R.3 IN O.A. NO. 443/03. EXT.P.5: COPY OF THE REJOINDER FILED BY THE APPLICANT IN O.A. NO. 443/03. EXT.P.6: COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE R.3. IN O.A. NO. 443/03. EXT.P.7: COPY OF THE ADDITIONAL REJOINDER FILED BY THE APPLICANT IN O.A. NO. 443/03. EXT.P.8: COPY OF THE ARGUMENT NOTE SUBMITTED BY THE APPLICANT IN O.A. NO. 443/03 DTD. 07/03/2006. EXT.P.9: COPY OF THE ARGUMENT NOTE SUBMITTED BY THE COUNSEL FOR THE RESPONDENTS IN O.A. NO. 443/03 DTD. 07/03/2006. EXT.P.10: COPY OF THE FINAL ORDER DTD. 29/03/2006 IN O.A. NO. 443/03 PASSED BY THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL. EXT.P.11: COPY OF THE OFFICE ORDER NO. 72/2007 DTD. 12/06/2007 ISSUED BY REGIONAL P.F. COMMISSIONER-II. EXT.P.12: COPY OF THE MEMO DTD. 06/12/2006 ISSUED TO THE PETITIONER BY ASST. P.F. COMMISSIONER. RESPONDENTS' EXHIBITS: EXT.R1: COPY OF THE RELEVANT EXTRACT OF THE FIXATION OF PAY OF RE- EMPLOYED PENSIONERS. EXT.R2: COPY OF THE MEMORANDUM NO.E-2004/PA1/RB2 DTD.1 5/05/2006 ISSUED BY THE RAILWAY BOARD. EXT.R3.A: COPY OF THE COMMUNICATION DTD. 22/01/2003 RECEIVED BY THE R.3. FROM THE R.2. EXT.R3.B: COPY OF THE COMMUNICATION ISSUED BY THE R.3. TO THE PETITIONER. EXT.R3.C: COPY OF THE MEMO DTD. 23/05/2003 ISSUED BY THE R.3. //TRUE COPY// P.S. TO JUDGE. prv. K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ W.P(C) NO: 12167 OF 2006-S ----------------------------------------------------------------------------------- Dated this the 20th January, 2009. JUDGMENT BALAKRISHNAN NAIR, J. The petitioner was an ex-serviceman. He was discharged from the army while working as Operator/Cipher Class I after more than 17 years of service. Later he was appointed in the Railway Board as LDC by order dated 12.6.1995 in the scale of pay of Rs.950-1500. On re-employment his salary was fixed as per annexure A3 produced along with Ext.P1 memorandum of original application in O.A.443/2003. Later, on his request he was transferred to the provident fund organisation as per annexure A4 dated 30.5.1997. His pay in the provident fund organisation was fixed as per annexure A6 dated 28.8.1997. While so, he has been served with annexure A7 dated 12.7.2001 refixing his pay without notice and hearing him. Against annexure A7 order, the petitioner submitted annexure A8 representation. The said representation was rejected by annexures A9 & A10 reply by the Railway Board and Regional Provident Fund Commissioner respectively. Against annexure A7, the petitioner again sought a clarification by submitting annexure WPC 12167/2006 2 A11. The same was rejected by annexures A12 and A13 by the above said authorities. So, the original application was filed challenging annexures A7, A9, A10, A12 and A13. He also challenged consequential proceedings annexure A14. 2. The respondents herein who were the respondents in the O.A resisted the application contending that petitioner's pay was fixed not in the minimum of the scale of pay of LDC. But it was fixed taking into account the past service rendered by him in the army. In such a case, the non-ignorable portion of his pension should have been deducted from the basic pay. By oversight the same was not done. He was allowed to draw full pension and he was granted fixation of pay taking into account his past service in the army. When this mistake was detected, consequential proceedings were taken to correct the same. Such steps included recovery of the excess salary also. So, the respondents prayed for dismissal of the O.A. 3. The Tribunal, after hearing both sides held that the initial fixation of pay of the petitioner was done mistakenly by failure to deduct the non-ignorable portion of the pension. But the petitioner contended that at any rate the recovery of the excess amount may be interfered with. The Tribunal considered the said WPC 12167/2006 3 point specifically and held that since a mistake is being corrected it should be corrected to the full extent by recovering the excess payment also. It was also noticed that the excess payment is recovered in easy instalments of Rs.500/- per month. 4. We heard learned counsel on both sides. 5. We notice that when the benefit of past service in the army was given to the petitioner in the matter of pay fixation, the non-ignorable portion of the pension was liable to be deducted from his basic pay. But it was not done. When the said mistake was realised action was taken to correct the mistake and to recover the excess payment. We find nothing wrong with the actions of the respondents in this regard. But learned counsel for the petitioner made a fervent plea that the excess payment may not be recovered. We notice that there are conflicting decisions on this point by this Court and the Apex Court. We also notice that each decision is rendered having regard to the facts of the particular case. If a very low paid employee is given some excess payment and the same is sought to be recovered after very long delay, courts have stepped in and interdicted. But when public money is paid wrongly to a public servant, he is bound to refund the same. In this case we notice that petitioner is a middle level employee and WPC 12167/2006 4 there is no inordinate delay in detecting the mistake and ordering recovery. So, the view taken by the Tribunal on this point cannot be said to be illegal, irrational or perverse. Therefore, we are not justified in interfering with the same under Art.226 of the Constitution of India. Accordingly the writ petition fails and it is dismissed. K.BALAKRISHNAN NAIR Judge K. SURENDRA MOHAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: