IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9677 of 2007(B)
1. D.VIJAYAMMA, W/O.P.KRISHNANKUTTY,
... Petitioner
Vs
1. KERALA LIVESTOCK DEVELOPMENT BOARD
... Respondent
2. THE STATE OF KERALA,REPRESENTED BY
For Petitioner :SRI.T.K.ANANDA PADMANABHAN
For Respondent :SRI.MILLU DANDAPANI
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :08/09/2010
O R D E R
S. Siri Jagan, J.
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W.P(C) No. 9677 of 2007
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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/