“No Recovery Of Excess Payment Of Money If The Same Is Not In Knowledge Of Employee”- Kerala High Court Refuses To Interfere In Tribunal’s Finding

“No Recovery Of Excess Payment Of Money If The Same Is Not In Knowledge Of Employee”- Kerala High Court Refuses To Interfere In Tribunal’s Finding

“No Recovery Of Excess Payment Of Money If The Same Is Not In Knowledge Of Employee”- Kerala High Court Refuses To Interfere In Tribunal’s Finding

 

In a significant case, Hon’ble Kerala High court refused to interfere with the Hon’ble Public Service Tribunal finding wherein the tribunal has directed the respondent/state authorities to not recover the payment of excess salary paid to the petitioner in the light of Hon’ble Supreme Court’s finding in State of Punjab and Others v. Rafiq Masih (White Washer) [(2015) 4 SCC 334].

However, Hon’ble court also held that petitioners/State authorities are at liberty to recover the excess payment of money, prospectively i.e. from 2016, if the same is within due notice of the respondent/employee that she is not eligible for that excess salary paid.

BRIEF FACTS OF THE CASE

The applicant (respondent herein) applied for Leave Without Allowance to join B.Ed. course under Rule 91 of Part I, KSR. Accordingly, the applicant secured admission to B.Ed. course for the period from 15.06.2004 to 29.03.2005. However, the Leave without Allowance was allowed belatedly, vide Annexure-A3 order dated 17.09.2004. The respondent authorities in O.A took a stand that the date of entry into service of the applicant will be taken as 30.03.2005, that is the date on which she rejoined after B.Ed course, thus forfeiting her earlier service.

In the meantime, Annexure-A6 G.O. dated 28.04.2010 was issued by the 1st respondent Government, as per which, an incumbent who availed Leave Without Allowance prior to 24.05.2005 to undergo B.Ed. course etc., is entitled to reckon his/her leave period for the purpose of increment. Acting upon AnnexureA6, the applicant was granted the benefit of increment. An audit objection came in the year 2013 against reckoning the leave period of the applicant for the purpose of increment.

CONTENTION OF THE PETITIONERS/STATE

Learned Senior Government Pleader submitted that the rigour of the White Washer’s case has been diluted substantially by the subsequent judgment of the Honourable Supreme Court in High Court of Punjab and Haryana and Others v. Jagdev Singh [(2016) 14 SCC 267], wherefore, the Tribunal seriously erred in placing reliance upon the White Washer’s case to grant relief to the respondent/applicant.

CONTENTION OF THE RESPONDENT/APPLICANT

Relying upon the judgment of the Honourable Supreme Court in State of Punjab and Others v. Rafiq Masih (White Washer) [(2015) 4 SCC 334] (hereinafter referred as White Washer’s case), the applicant contended that the direction to recover excess payment is bad in law and sought for quashing Annexures A8 and A9 orders.

HON’BLE COURT’s OBSERVATIONS

Hon’ble Division Bench Comprising Hon’ble Mr. Justice Alexander Thomas and Hon’ble Mr. Justice C Jayachandran while consideration the above two rulings observed that “the legal position emanating from the White Washer’s case followed by Jagdev Singh (supra) is no more res integra. In State of Kerala and Others v. Vinod Kumar C.R [2020 (4) KLT 230], a Division Bench of this Court considered the impact of Jagdev Singh (supra) on the dictum laid down in White Washer’s case and held as follows:

“7. ………………On a reading of both Rafiq Masih and Jagdev Singh, it is difficult for us to accept the contention of the learned Government Pleader that Jagdev Singh is a complete departure from the principles laid down in Rafiq Masih. From a reading of paragraphs 10 and 11 of Jagdev Singh, it appears to us that the Supreme Court had only clarified that in the case of recovery from retired employees or employees who are due to retire within one year of the order of recovery, there would be no bar in ordering recovery, if the employee concerned had executed an undertaking agreeing to refund any excess payment. We cannot read Jagdev Singh as having laid down the proposition that in every case where there is an undertaking as aforesaid, recovery can be ordered from the employee concerned whatever be the point of time that such payment was made. We cannot overlook the fact that there is not even a suggestion in Jagdev Singh that in the event of there being an undertaking to refund excess pay, none of the situations envisaged as items (i) to (v) of Rafiq Masih can be pressed into service.”

Hon’ble court then placed reliance on State of Kerala and Others v. Sreedevi T.R. [ILR 2019 (4) Ker. 791] and State of Kerala and Others v. P.V.Priya [2021 KHC 473] wherein Kerala HC distinguished between the findings of White Washer’s case and Jagdev Singh case.

Further, the Hon’ble court held that all the above three findings have considered the three judge bench of Hon’ble SC observations made in Syed Abdul Qadir and Others v. State of Bihar and Others [(2009) 3 SCC 475] and quoted para 59 of the said judgment

““59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. The learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made. ”

In view of the above observations, Hon’ble Court held that it appears that respondent/applicant has no knowledge of excess payment, hence it can’t be recovered from her. However petitioners are at liberty to recover that excess payment of money which is paid to her and for which she has a due notice that salary drawn by her is in excess.

Case Title:-  State of Kerala & ors Vs. Seena M

Case no. :-   OP(KAT) NO.95 OF 2023

Order date :- 06.06.2023

 

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