IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1920 of 2008()
1. THE ASSISTANT EDUCATION OOFFICER,
... Petitioner
2. THE DEPUTY DIRECTOR (EDUCATION),
3. THE STATE OF KERALA, REP. BY THE SPECIAL
4. THE HEAD MASTER, GOVERNMENT
Vs
1. K.N. LAKSHMI, W/O. V.R.GOPALAN,
... Respondent
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.K.K.CHANDRAN PILLAI
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :23/11/2009
O R D E R
K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ.
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W.A.No.1920 of 2008
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Dated this, the 23rd day of November, 2009
JUDGMENT
Balakrishnan Nair, J.
The respondents in the Writ Petition are the
appellants. The respondent herein was the writ petitioner.
The brief facts of the case are the following:
The respondent was appointed as a P.D.Teacher
from 13.6.1975 to 31.3.1976. Thereafter, she was appointed
on a regular basis on 1.6.1976. She was an untrained
P.D.Teacher. Therefore, she was deputed for Teachers’
Training Course from 1.2.1977 to 31.12.1978. She passed the
Teachers’ Training Course on 30.8.1979. When her salary was
fixed, the apprentice period, i.e. from 13.6.1975 to 31.3.1976
was also reckoned. The same was against Ext.P2 circular
issued by the Government on 11.7.1984. This was realised
only in 2001. Immediately, she was served with Ext.P3 show
cause notice dated 3.11.2001 proposing to re-fix her salary
excluding her apprentice service period from 13.6.1975 to
W.A.No.1920 of 2008
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31.3.1976. Thereafter, by Ext.P4 order dated 7.9.2002, the
proposal under Ext.P3 was affirmed. In the light of Exts.P3 and
P4, the Assistant Educational Officer, Arakulam, re-fixed her
salary by Ext.P5 proceedings dated 5.12.2002. Aggrieved, the
respondent/petitioner preferred Exts.P6 and P7
representations before the Government. Those
representations were rejected by Ext.P10 and she has been
saddled with a liability of Rs.1,19,765/- as per Exts.P11 and
P12. The respondent herein filed the Writ Petition challenging
Exts.P4, P5, P10, P11 and P12. The Government resisted the
reliefs sought, relying on Ext.P2. But, the learned Single
Judge, overruled the contention of the appellants herein and
allowed the Writ Petition, relying on Ext.P1, which is a
Government Order dealing with the benefits to be granted to
untrained teachers, i.e. those P.D. Teachers who joined service
without T.T.C. qualification and acquired the said qualification
while in service. Feeling aggrieved by the said judgment, this
appeal is preferred.
W.A.No.1920 of 2008
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2. We heard the learned Government Pleader
Smt.R.Bindu and Sri.K.K.Chandran Pillai, who appeared for the
respondent.
3. We notice that Ext.P1 Government Order, which
deals with reckoning untrained service to P.D.Teachers, has no
application to the facts of this case. The point in dispute
between the parties was whether the period of apprenticeship
from 13.6.1975 to 31.5.1976 could be reckoned for various
service benefits. By virtue of Ext.P2, it cannot be reckoned.
The finding in the judgment under appeal that the respondent
was not an appointee under half a million jobs programme is
untenable, since, during 1975-1976, the apprentices were
appointed in Government service only under the said scheme.
Therefore, her service as an apprentice has been wrongly
reckoned. So, the State is entitled to correct the mistake.
4. Now, the next point to be considered is, whether
the State should be allowed to recover the excess salary paid
by mistake to the respondent. She submits that she was in no
W.A.No.1920 of 2008
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way responsible for the wrong fixation. She was a low paid
employee and has expended the amounts received by her,
thinking that the amounts received were legitimately due to
her. Now, at this distance of time, if she is required to repay
the amounts received in excess, she will be put to irreparable
injury and hardship. In support of her submission, the learned
counsel for the respondent relied on the decision of the Apex
Court in Registrar of Co-operative Societies v. Israil
Khan, [2009 (4) KLT SN 61 (Case No.53) SC], wherein it was
held as follows:
“…Such relief, restraining recovery back of
excess payment is granted by courts not because
of any right in the employees, but in equity, in
exercise of judicial discretion, to relieve the
employees, from the hardship that will be caused
if recovery is implemented. A Government
servant, particularly one in the lower rungs of
service would spend whatever emoluments he
received for the upkeep of his family. If he
receives an excess payment for a long period, he
would spend it genuinely believing that he is
entitled to it. As any subsequent action to
recover the excess payment will cause undue
hardship to him, relief is granted in that behalf.
W.A.No.1920 of 2008
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But where the employee had knowledge that the
payment received was in excess of what was due
or wrongly paid, or where the error is detected
or corrected within a short time of wrong
payment, Courts will not grant relief against
recovery. The matter being in the realm of
judicial discretion, courts may on the facts and
circumstances of any particular case refuse to
grant such relief against recovery. What is
important is recovery of excess payments from
employees is refused only where the excess
payment is made by the employer by applying a
wrong method or principle for calculating the
pay/allowance, or on a particular interpretation
of the applicable rules which is subsequently
found to be erroneous. But where the excess
payment is made as a result of any
misrepresentation, fraud or collusion, courts will
not use their discretion to deny the right to
recover the excess payment.”
5. We notice that the respondent is a member of
the Scheduled Caste. She has already retired from service
during the pendency of the Writ Petition. If she is called
upon to pay the entire excess amount paid from 1979
onwards, the same will cause very serious hardship to her.
W.A.No.1920 of 2008
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But, she cannot escape from the liability to refund the excess
amount received from the date of Ext.P3. i.e. 3.11.2001.
6. In the result, the judgment under appeal is
reversed. The impugned orders are restored. The re-fixation
of the salary of the respondent is also upheld. But, it is made
clear that the excess amount paid to her up to 3.11.2001
shall not be recovered from her. Any excess amount paid
thereafter to the respondent can be recovered by the
appellants.
The Writ Appeal is disposed of as above.
Sd/-
K. Balakrishnan Nair,
Judge.
Sd/-
P. Bhavadasan,
Judge.
DK.
(True copy)