N G PANKAJASHY V. UNION OF INDIA

WP(C)/19996/2013

AI Insights

The case revolves around a writ petition filed by N G Pankajashy, a retired Assistant Matron from the Central Reserve Police Force, challenging the recovery of excess leave encashment payments made to her upon retirement. The petitioner argued that the recovery was unjustified and barred by limitations, citing precedents that prevent recovery from low-paid employees and retired personnel. The respondents, including the Union of India and various departments of the Central Reserve Police Force, contended that the recovery was necessary due to an audit finding that the petitioner had been overpaid. The court examined the circumstances of the payment, the timing of the audit objections, and the applicable legal precedents and circulars.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 678575 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 01-07-2019
• Assessment Year: misc
• Other Referred Cases: State of Punjab and Others v. Rafiq Masih (White Washer), Syed Abdul Qadir and Others v. State of Bihar and Others
• Laws Referred To: State of Punjab and Others v. Rafiq Masih (White Washer), Syed Abdul Qadir and Others v. State of Bihar and Others
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: O M SHALINA; CGC
• Assessee Lawyers: C RAJENDRAN; R S SREEVIDYA
• Keywords: Audit objection; Certiorari; Certiorari; Leave encashment; Mandamus; Retirement benefits; Writ petition; Recovery of Excess Payment

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 01ST DAY OF JULY 2019 / 10TH ASHADHA, 1941 WP(C).No.19996 of 2013 PETITIONER/S: N G PANKAJASHY,AGED 67 YEARS, C/O.C.J.JOY, CHAKKALAKKAL HOUSE, MAHATMA GRANTHALAYAM ROAD, VADUTHALA P.O., KOCHI-23. BY ADVS. SRI.C.RAJENDRAN SMT.R.S.SREEVIDYA RESPONDENT/S: 1 UNION OF INDIA REPRESENTED BY ITS SECRETARY TO HOME DEPARTMENT, CGO COMPLEX, NEW DELHI-110 001. 2 INSPECTOR GENERAL(MEDICAL)/MEDIAL SUPERINTENDENT CENTRAL RESERVE POLICE FORCE, COM POSIT HOSPITAL, JERODHKALAN, NEW DELHI-110 012. 3 THE DIRECTOR PAY AND ACCOUNTS DEPARTMENT, CENTRAL RESERVE POLICE FORCE, MAHAVIR NAGAR, NEW DLEHI-110018. BY ADVS. ASSISTANT SOLICITOR GENERAL SMT.O.M.SHALINA, CGC OTHER PRESENT: THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.19996 of 2013 2 JUDGMENT This writ petition is filed with the following prayers:- i) To call for the records leading to Exhibit P4 letter of the 2nd respondent and quash the same by the issuance of a writ nature of CERTIORARI or any other appropriate writ or order. ii) To issue a writ in the nature of MANDAMUS or any other appropriate writ order or direction compelling and commanding the respondents 1 and 3 not to proceed further against the petitioner. iii) To give direction to the respondents to disburse Rs.25,000/- to the petitioner. iv) To declare that the realisation of amount from the petitioner pursuant to Exhibit P4 by the respondents 1 to 3 is barred by limitations. v) to declare that there is no over payment to the petitioner for earned leave. 2. Heard learned counsel for the petitioner and the learned Central Government Counsel appearing for the respondents. 3. It is submitted that the petitioner had retired as Assistant Matron (Sister in charge) from the Central Reserve Police Force on 30.06.2005. It is stated that the petitioner had been granted all retirement benefits after her retirement and was drawing monthly pension of Rs.16,600/ at the time of filing of this writ petition. It is stated that the earned leave encashment was also released to the petitioner after her retirement from service. However, by WP(C).No.19996 of 2013 3 Ext.P1 dated 21.03.2007, the petitioner was intimated that there was an audit objection with regard to leave encashment amount availed by her and that an amount of Rs.1,13,510/- is liable to be refunded by her. The petitioner submitted Exts.P2 and P3 requests for the details regarding the audit objection and mistakes, if any, in her leave account. Long thereafter, by Ext.P4 proceedings dated 8.03.2013, the petitioner was told that she had drawn Rs.1,42,970/- which was equivalent to 253 days of leave after her retirement in 2005. It is stated that her actual entitlement was only for 132 days of leave and as such she has to repay an amount of Rs. Rs.66,522/- being the amount drawn by her in excess. 4. It is submitted by the learned counsel for the petitioner that the issue of over payment of amounts not due to any fault of the employee is squarely covered by a decision of the Apex Court in State of Punjab and Others v. Rafiq Masih (White Washer) [2014 KHC 4818] and several other decisions of the Apex Court. It is stated that respondents themselves have issued a circular dated 2.3.2016 specifying that no recovery shall be made from the employees belonging to class III and IV service (or Group 'C' and Group 'D' services) and no recovery shall be effected from retired employees or employees who are due to retire within one year, of the order of recovery. WP(C).No.19996 of 2013 4 5. In the instant case, it is contended that there was absolutely no fault on the part of the petitioner in drawing of the earned leave surrender amounts and the mistake, if any, would have occurred with the respondents themselves. It is contended that in the facts and circumstances of the case, there is absolutely no justification in effecting any recovery from the amounts already paid to the petitioner. 6. A counter affidavit has been placed on record by the respondents contending that the earned leave surrender amounts had been released to the petitioner on 17.7.2006. It is stated that audit objections were raised on 6.3.2007 and that the petitioner had immediately been put on notice by Ext.P1 that amounts are due to be recovered from her. It is stated that after recasting of the leave account, the correct amount had been arrived at and that the petitioner had been informed by Ext.P4 that an amount of Rs.66,522/- had been wrongly paid in excess to the petitioner and that the petitioner is required to refund the same. 7. The learned Central Government Counsel appearing for the respondents would attempt to justify the action by stating that the decisions in Rafiq Masih's case (Supra) and in Syed Abdul Qadir and Others v. State of Bihar and Others [2009 KHC 4219] had been rendered by the Apex Court considering the WP(C).No.19996 of 2013 5 hardship faced by low paid employees by recovery of amounts from their pension or gratuity after long periods. It is further contended that in the instant case, the petitioner draws an amount of Rs.16,600/- as pension and that since amounts had been paid in excess, the respondents may be permitted to make recovery in monthly installments. 8. I have considered the contentions advanced at considerable length. The petitioner had admittedly retired from service on 30.06.2005. The leave encashment amounts were paid to her on 17.7.2006. Deductions were made from the same towards amounts due to her as also towards income tax on the amount paid. It appears that it is only thereafter audit objections had raised in 2007. As on the date of Ext.P4, when the amount is quantified and intimated to her, the period of five years from the date when the alleged wrong payment was made had also long expired. 9. Having considered the contentions advanced on either side as also the decisions of the Apex Court and Circulars issued by the respondents in compliance thereto, I am convinced that the present case is a fit one where respondents should hold their hands in the matter of recovery of amounts wrongfully paid to the petitioner. Since the petitioner had retired in 2005 and had WP(C).No.19996 of 2013 6 availed the benefits on 17.7.2006, I am of the opinion that the action taken by the respondents in 2013 to recover the amounts wrongfully paid would not be sustainable. Recovery proposed being from a retired employee, would not be permissible in terms of the decisions of Apex Court and Ext.P5 Circular. In the result, the writ petition is allowed. Exts.P1 and P4 are set aside. The respondents shall desist from making any recovery from the earned leave surrender benefits granted to the petitioner. Sd/- ANU SIVARAMAN JUDGE rmm WP(C).No.19996 of 2013 7 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 EXHIBIT P1.A TRUE PHOTOCOPY OF THE LETTER OF THE 2ND RESPONDENT EXHIBIT P2 EXHIBIT P2.A TRUE PHOTOCOPY OF THE REPLY DATED MARCH 2007. EXHIBIT P3 EXHIBIT P3.A TRUE PHOTOCOPY OF THE LETTER DATED 6/3/2007. EXHIBIT P4 EXHIBIT P4.A TRUE PHOTOCOPY OF THE LETTER NO.L-11-2/2013-CH-EC-3 DATED 8/3/2013. EXHIBIT P4(a) EXHIBIT P4(A).A TRUE PHOTOCOPY OF THE RECASTED LEAVE ACCOUNT ATTACHED TO EXHIBIT P4. EXHIBIT P5 A TRUE PHOTOCOPY OF THE OFFICE MEMORANDUM F NO.18/03/2015 ESTT (PAY- I)DATED 2-3-2016 ISSUED BY MINISTRY OF PERSONNEL,PUBLIC GRIEVANCES & PENSIONS DEPARTMENT OF PERSONNEL & TRAINING, GOVERNMENT OF INDIA RESPONDENTS EXHIBITS EXHIBIT R1(a):- TRUE COPY OF THE AUDIT OBJECTION LETTER ISSUED BY AUDIT OFFICER, IAP-III, CRPF, N/DELHI DATED 06.03.2007. EXHIBIT R1(b) :- TRUE COPY OF THE LETTER DATED 21.03.2007 ISSUED BY IG (MEDICAL) SUPERINTENDENT, OH, CRPF, NEW DELHI EXHIBIT R1(c):- TRUE COPY OF THE LETTER DATED 06.03.2007 ISSUED BY DIRECTOR PAO, CENTRAL RESERVE POLICE FORCE, NEW DELHI. EXHIBIT R1(d):- TRUE COPY OF THE LETTER DATED 13.02.2013 ISSUED BY CMO(DR/RAJESH GARG) (ADMN) C.H.CRPF NEW DELHI // TRUE COPY // PA. TO JUDGE "