IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 1678 of 2005()
1. THE DEPUTY DIRECTOR OF EDUCATION,
... Petitioner
2. THE ASSISTANT EDUCATIONAL OFFICER,
3. THE STATE OF KERALA,
Vs
1. K.K. JUGUNU,
... Respondent
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.P.V.KUNHIKRISHNAN
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.M.JOSEPH
Dated :29/01/2008
O R D E R
H.L.DATTU, C.J. & K.M.JOSEPH, J.
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W.A.No.1678 of 2005
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Dated, this the 29th day of January, 2008
JUDGMENT
K.M.Joseph, J.
Respondents in O.P.No.10704 of 2002 are the appellants. The writ
petition was filed with a prayer to quash Ext.P1 and also for a declaration that
no amount can be deducted from the pensionary benefits of the writ petitioner
(hereinafter referred to as ‘the petitioner’), based on Ext.P1 audit remarks.
2. The petitioner joined service as a primary school teacher in 1967
and she became Headmistress with effect from 1.6.1992. She retired from
service on 31.3.2002. The pay of the petitioner came to be notionally fixed in
the pre-revised scale at Rs.1990/- in the Primary Teachers’ Selection Grade
scale of Rs.1250 – 2230. Consequently, her pay as Headmistress was
fixed at Rs.2150/- in the scale of pay of Rs.1330 – 2555 based on the pay
revision order of the Government with effect from 1.7.1997. After the pay
revision, the scale of pay of the petitioner was refixed at Rs.2420/- in the
revised scale of Rs.1600 – 2600 with effect from 1.7.1995. Petitioner had
drawn her salary on the basis of the above fixation in the pre-revised scale.
This came to be objected by the Audit department and in view of the audit
objection the petitioner was directed by Ext.P1 to refund a sum of Rs.94,927/-.
Petitioner offered her explanation as is evident from Ext.P2 which is a
rectification report on the audit remarks of the Deputy Director of Education.
In the explanation the petitioner also pointed out that she is not in a position to
repay such a huge amount and she prayed that her pay fixation may be
regularised and the objection raised by the Audit may be dropped. The
petitioner also relied on Ext.P3 Government order.
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3. The learned Single Judge took the view that there was no mis-
representation in the matter of refixation of her salary and that there was no
allegation of fraud or foul play on the part of the petitioner. The learned Single
Judge also took the view that petitioner was paid salary at the pre-revised and
revised scales for nearly ten years without any objection from the Audit
department. Her salary was revised and fixed in the light of the pay revision
order and she continued to get salary till her retirement on 31.3.2002. The
Court also took the view that in the absence of any material to show that the
petitioner had managed to draw salary after committing any fraud or act of
misrepresentation the respondents are not justified in effecting recovery and
that too after a long lapse of time. Therefore, the writ petition was allowed and
Ext.P1 was quashed.
4. Aggrieved by the said judgment, the respondents in the writ petition
have filed the present appeal.
5. Heard Sri.M.P.Sreekrishnan, learned Government Pleader appearing
for the appellants and Sri.P.V.Kunhikrishnan, learned counsel appearing for the
respondent.
6. Learned Government Pleader would point out that even if it is true
that there was no misrepresentation or fraud committed by the writ petitioner in
the matter of fixation of her pay, it is not the law that the amounts paid on
account of a mistaken fixation cannot be recovered. In this context he drew our
attention to a Bench decision of this Court in Santhakumari v. State of Kerala
(2005 (4) KLT 649). Therein the Division Bench after taking note of the
conflicting decisions in the matter has considered the question and took the
following view:
W.A.No.1678 of 2005
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“5. In our view, if an employee has received any
amount contrary to a statutory provision the mistake is
mutual since the administration as well as the employee is
bound by the statutory provision. Paying and receiving the
amount contrary to the statutory provision is illegal. When a
mistake is mutual that has to be shared by both the parties.
Law would nullify such an action if the parties are mistaken
on the same fact situation. In a case where the mistake is
mutual, both the parties act on the same mistaken
assumption. Person who pays the amount is on the
legitimate belief that the person who receives the amount is
entitled to receive it and the person who receives the amount
is on the belief that he is entitled to receive the same.
Mistake in such a situation, in our view, is mutual.
Consequently same has to be set right in public interest
unless there is statutory bar in recovering the amount.
6. Principle laid down by the learned Judge in
Sivankutty Nair’s case (2005 (3) KLT 512), in our view cannot
be of general application. Reasoning of the learned single
Judge that the excess amount paid on account of wrong
fixation of pay cannot be recovered unless the employee has
in any way contributed to the mistake, in our view, is an over
statement of law. We may hasten to add, unless there is
statutory bar in recovering the amount, any amount paid by
mistake could be recovered depending upon the facts and
circumstances of each case. To hold that only in a case
where employee has contributed to the mistake amount
could be recovered cannot be sustained. Facts situation
may warrant a sympathetic consideration but cannot be
accepted as a general principle of law.”
7. Learned Government Pleader would also contend that the reasoning
W.A.No.1678 of 2005
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and the consequential conclusion of the learned Single Judge are both
unsustainable being contrary to the aforesaid Bench decision of this Court.
8. Learned counsel appearing for the respondent would point out that
the Bench decision was pronounced subsequent to the judgment of the learned
Single Judge. Learned counsel, on the other hand, would draw our attention to
the decision of the apex Court reported in Aleyamma Varghese v. Secretary,
General Education Department and others (I.L.R. 2007 (3) Ker.105). Therein
also the apex Court was considering a case of recovery from pay effected by
the State on account of a subsequent discovery of mistaken payment. In
that case, the apex Court proceeded to hold as follows:
“A mistake apparent on the face of the record may be
rectified but in a matter of this nature, we would expect the State
to react more magnanimously and not resort to recovery
proceedings after a period of 17 years. We, therefore, in the
peculiar facts and circumstances of this case, are of the opinion
that with a view to do complete justice to the parties, the amount
sought to be recovered may not be recovered from the appellant
and we direct accordingly. The impugned judgment is set aside
and the appeal is allowed with the aforesaid observations and
directions.”
9. Learned counsel for the respondent also drew our attention to the
decision of a learned Judge of this Court reported in Shamsuddin v. State of
Kerala (2004 (2) KLT 1020). The question that arose for consideration in the
said case was whether the excess payment should be one made during the
period of four years prior to the retirement of the employee. Therein the
learned Judge was considering a case under Rule 3C of Part III of the Kerala
Service Rules. The Court took the view that it is not enough that the excess
W.A.No.1678 of 2005
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payment is detected within four years of retirement.
10. As far as the decision of the apex Court relied on by the learned
counsel for the respondent is concerned, we notice that, that was a case
where the apex Court set aside the judgment of this Court apparently with
reference to its powers under Article 142 of the Constitution. This conclusion
is inevitable in view of the fact that the Court has held that it is to do
complete justice to the parties that the Court was interfering with the judgment
of this Court. Further, we notice that the Court has not laid down any principle
of law which can be called as a precedent within the meaning of Article 141 of
the Constitution. As far as the decision of the learned Single judge in
Shamsuddin’s case (supra) is concerned, we notice that, that was a case
where the question which arose for consideration was the interpretation of
Rule 3C of Part III of the Kerala Service Rules which permits recovery from the
pension of an employee in respect of mistaken payment made within four
years of the retirement.
11. The mistake in the present case was discovered in the year 2001
as Ext.P1 is of the year 2001. Therefore, discovery of the mistake was made
in the year 2001 and that is much prior to the date of retirement of the
respondent, that is 31.3.2002.
12. The learned counsel appearing for the respondent would also
refer to the observation made by the Division Bench of this Court in
paragraph 6 of the judgment and contend that the principle has to be applied
case by case and on evaluation of facts present in each case.
13. We would think that the writ petition was filed in the year 2002.
Ext.P1 is of the year 2001. The respondent offered her explanation as is
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evident from Ext.P2. There is no case for either party that a decision was
taken on the explanation offered by the respondent. In such circumstances,
we would think that a decision on the objection of the respondent was called for
and without waiting for a decision on the same the respondent approached
this Court with the writ petition.
14. In such circumstances we dispose of the writ appeal as follows:
i) Writ appeal is disposed of.
ii) The first appellant will now consider the objection filed by the
respondent to Ext.P1 and take a decision thereon in accordance with law. We
also make it clear that it is open to the respondent to raise any further objection
as supplemental objection to Ext.P1 within a period of two weeks from the date
of receipt of a copy of this judgment.
iii) The objection filed by the respondent to Ext.P1 as also any
supplemental objection as the respondent may file as permitted by this Court in
this Judgment will be considered by the first appellant and a decision taken
thereon within a period of two months from the date of receipt of a copy of this
judgment.
(H.L.DATTU)
CHIEF JUSTICE
(K.M.JOSEPH)
JUDGE
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