IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 29835 of 2003(B)
1. S.P.KRISHNAKUMAR,
... Petitioner
Vs
1. GURUVAYOOR DEVASWOM MANAGING COMMITTEE
... Respondent
2. THE ADMINISTRATOR, GURUVAYOOR DEVASWOM,
3. THE COMMISSIONER, GURUVAYOOR DEVASWOM,
For Petitioner :SRI.SAJEEV KUMAR K.GOPAL
For Respondent :SRI.KODOTH SREEDHARAN, SC, GDB
The Hon'ble MR. Justice M.RAMACHANDRAN
The Hon'ble MR. Justice A.K.BASHEER
Dated :06/12/2006
O R D E R
(M.RAMACHANDRAN & A.K.BASHEER, JJ)
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W.P.(C) No.29835 of 2003-B
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Dated this the 6th day of December, 2006
JUDGMENT
Ramachandran, J:
After undergoing 10 years training, the petitioner
had been appointed as Music Artist Grade III on 03-05-1997, by
the Guruvayoor Devaswom. Although the training was over by
12-10-1996, for want of regularisation, he had been continued to
be paid only a stipend. The petitioner claims that he was
attending to the work of Grade III Artist from the above said
date.
2. Later on, in its wisdom, the Managing Committee
had given retrospective effect to the appointment from
12-10-1996. But the employee had been advised that
consequent thereto there will not be any monitory benefits.
Perhaps taking into account the representation submitted by the
petitioner and persons similarly situated, by Ext.P5 order dated
07-03-2000, the Managing Committee had extended the benefit
of salary, in the prescribed scale, for the above said period as
well. In respect of the petitioner, after adjusting the stipend
paid for the period, additionally Rs.11,355/- had been given.
3. After over three years, on 24-05-2003 he had been
advised that the monitory benefits so granted was proposed to
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be recovered. This was stated to be for the reason that the
Local Fund Audit had objected about the grant of pay, since the
statute did not postulate extension of such benefits. He was
asked to pay back a sum of Rs.11,355/-. The writ petition
followed. The petitioner submits that after extending the
benefits, which was prescribed by a decision of the competent
authority, it could have been cancelled and that too after years.
4. Without going to the merits of the case, during the
pendency of the writ petition, this Court had directed the
Managing Committee to consider the matter afresh. However,
by Ext.10 the petitioner had been advised that there was no
possibility for retracing the steps already taken.
5. Learned counsel for the respondent, justifying their
stand, submits that although retrospectivity and arrears of pay
had been granted, it sprouted from an erroneous decision and
without jurisdiction, and when such infirmity is pointed out, the
mistake requires to be set right. Although the petitioner
contended that he was working as Grade III Artist, according to
the respondent, there was nothing produced to indicate that he
was working in the regular category. Immediately after receipt
of the Audit Report, consequential steps were taken for
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rectification of the mistake, as expected of a statutory authority,
and if such follow up steps were not taken, the Committee would
have been found fault with. According to the counsel, the legal
position would be that the employee was not authorised to
appropriate the extra payments received by him. Once it was
found that the payment was irregular, he had a duty to refund it.
What was paid was not found to be an authorised payment. The
time lag was of no consequence. An audit team was expected to
critically examine the accounts and proceedings, and point out
errors and omissions. The errors required to be set right.
Therefore, the claims as presented in the writ petition were not
entertainable. We may examine the rival contentions in the
above context.
6. We find that the petitioner had completed the
training by 12-10-1996. Having been recommended for
appointment, he would have been normally entitled to claim
regularisation immediately thereafter. It is not argued that the
training continued after the stipulated period of ten years.
There was no orders to indicate that after the prescribed
training period, training continued to be imparted. The position,
therefore, would be that the petitioner would have been put to
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work as a Grade III Artist, as delay in regularisation might have
been due to administrative reasons. The contention of the
petitioner is that it will be unethical for an employer to contend
that excess payments made even by an oversight always would
be recoverable, ignoring passage of time, albeit that payments
happened to be made unsolicited or were sanctioned by the
competent authority after deliberations. But we are not
prepared to endorse the arguments as above to the full extent.
Irregular payments are possible to be recovered and should be
recovered. The audit procedure is intended to detect
irregularities and omissions. The recommendations are to be
duly taken notice of for setting right the mistake. They are also
intended for future guidance and to suggest otherwise would be
an encouragement to break down the system. If there are rules
authorising recovery, it will bind the parties. That appears to be
one side of the picture.
7. When we independently examine the issue, it is
possible to note that the rule should admit of exceptions as well.
For instance, if an employee was required to shoulder higher
responsibilities, consequent to the proceedings issued by the
competent authority, later on when an error is found, it is not in
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any case automatic that the enhanced pay earned by him
necessarily have to be regurgled. It may be unjust. In the
present case, the circumstances highlighted would establish that
the petitioner had been put to work as a Grade III Artist, which
post carried a time scale. Only the admissible pay had been
paid over to him. He was not a trainee. Therefore the
contention that only stipend would be paid for the period may
not be acceptable.
8. The Supreme Court, in Purshottam Lal Das v.
State of Bihar [2006 AIR SCW 5325], had occasion to consider
an issue, concerning the right of the employer to recover the
excess salary paid. Promotions were made by the State of
Bihar from Class IV to Class III post of Basic Health Workers,
but later on it was found that it was done in violation of
statutory Rules. The beneficiaries were reverted and excess
salary was ordered to be recovered. Challenge followed. The
Patna High Court repelled the contentions raised by the
petitioners, which had led to the Special Leave Petition.
9. The apex Court held that the reversion was legal and
justified. But, it had been observed that it did not mean that
the recovery of the higher salary paid was to automatically
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follow. We may quote paragraphs 10 and 11 of the judgment
herein below:
“10. High Court itself noted that
the appellants deserve sympathy as for no
fault of theirs, recoveries were directed
when admittedly they worked in the
promotional posts. But relief was denied on
the ground that those who granted had
committed gross irregularities.
11. While, therefore, not accepting
the challenge to the orders of reversion on
the peculiar circumstances noticed, we
direct that no recovery shall be made from
the amounts already paid in respect of the
promotional posts. However, no arrears or
other financial benefits shall be granted in
respect of the concerned period.”
10. We feel that the observations could be applied on all
fours to the facts of this case, at least in so far as the relief
portion is concerned. We do note that the Court was not
examining the contention where the audit authority had
objected to the payment. We are of the opinion that audit
reports normally are to be given due weight, and rectification
measures in respect of the objections are to follow. There is no
scope for importing discretion here. The Department or
organisation concerned also do not have any liberty to write off
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over payments, unless a decision come from an empowered
authority.
11. Although we have explained the general principles,
which normally are to be followed, the facts of the present case,
however, require that interference is made in exercise of powers
under Article 226 of the Constitution of India. Exts.P6, P7 and
P10 will stand set aside. This position will not enable the
petitioner to claim any other benefits of service in a manner
adversely affecting any of his colleagues, since rights declared
are purely in respect of the salary earned by him for a short
period. The writ petition is disposed of as above.
(M.RAMACHANDRAN)
JUDGE
(A.K.BASHEER)
JUDGE
mks/
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