The petitioner retired from the service of the 1st respondent-Corporation on 30.09.2004, while working as Sergeant at the Regional Workshop, Mavelikkara. After retirement the petitioner was paid with all terminal benefits including monthly pension, as evident from Ext.P1. But on 04.11.2004 the petitioner was issued with Ext.P2 Memo, whereby his eligible service period was ordered to be modified stating that 2nd Saturdays availed as holidays by the petitioner was not in order because he was not eligible to avail such holidays. It is evident from Ext.P2 that 2nd Saturdays availed by the petitioner from 10.11.2001 to 10.07.2004 was modified as 'Half-Pay Leave' and 'Leave Without Allowance'. Consequently the pay and allowances received by the petitioner was directed to be modified and the excess payments was ordered to be recovered. Eventhough the petitioner submitted Ext.P3 objections, no action was taken by the respondent, to reconsider the action proposed. Under such circumstances the petitioner is approaching this Court seeking to quash Ext.P2. 2. Contention of the petitioner is that the post of Sergeant is a supervisory post and he is the head of the Security branch and sanitary wing at the Regional Workshop. The system of availing holidays on 2nd Saturdays was practiced in KSRTC for decades together and the petitioner was permitted to avail such holidays. It is further contended that the Leave and Attendance' of the petitioner was subjected to periodic audit and at no point of time it was pointed out that the petitioner is not entitled to avail holidays on 2nd Saturdays. The 'C.O. Memorandum' referred to in Ext.P2 Memo is produced as Ext.P4. It indicates that 2nd Saturdays were declared as holidays to the ministerial staff in KSRTC, except to those who are working in shift basis. It is contended by the petitioner that duties of Sergeants were not performed on shift basis and the exemption provided in Ext.P4 is not applicable with respect to Sergeants. It is further contended that the respondents are not entitled to recover the amounts on the basis of the allegations contained in Ext.P2, after the retirement and after disbursal of all the terminal benefits.
3. In the counter affidavit it is contended that personell of security wing including Sergeants are placed on shift basis and as per Ext.P4 order such personals are not eligible to avail holiday on 2nd Saturdays. Contention of the respondents is that, marking of attendance in the register is by the Sergeants themselves and the bills admitted on the basis of preliminary audit which are drawn and disbursed to them are subject to final audit. It is only during the final audit that the objection was noticed. It is contended that the pension and other benefits are disbursed immediately after the retirement only to avoid any hardships to the petitioner, after obtaining undertaking to the effect that he will clear all liabilities if detected on any subsequent situation. Hence it is contended that the petitioner is legally bound to make good the liabilities detected after issuance of pension.
4. Both sides have not produced any of the relevant orders which will show the exact position with respect to availing holidays on 2nd Saturdays by personell in the cadre of Sergeants. Contention of the petitioner is that Sergeant is a post coming within supervisory cadre and they are entitled to avail holidays on 2nd Saturdays. Per contra, contention of the respondents is that the Sergeant is a post coming within the security wing which works on shift basis and is not entitled to avail holidays on 2nd Saturdays. Admittedly the petitioner had availed holidays during the entire tenure of his service as Sergeant without any objection and the salary and other benefits were paid after scrutiny (preliminary audit) of the Attendance Register. After retirement the petitioner was paid with all terminal benefits. Now the impugned recovery is proposed only based on an audit objection.
5. It is settled through various precedents of the Hon'ble Supreme Court and this Court that, recovery from a retired employee cannot be made for no mistake of his own. It further remains settled that, mistake if any detected subsequent to the tenure of an employee with respect to pay and allowance paid cannot be recovered in determental to the interest of the employee, long after his retirement.
6. Here is a case where the ministerial staff of KSRTC were permitted to avail holidays on 2nd Saturdays, except in the case of staff on shift basis. No material is produced to show that the post of Sergeant will not fall within the category of ministerial staff. Moreover if there is no materials produced to show that the petitioner was working on shift basis. This Court is of the considered opinion that, it is not justified at this point of time to make any recovery from the benefits already paid to the petitioner, on the basis of Ext.P2 Memo. This is especially because of the fact that at no point of time there was any objection raised against the petitioner availing holidays on 2nd Saturdays.
Under the above mentioned circumstances, the writ petition is allowed and Ext.P2 is hereby quashed. The respondents are restrained from affecting any recovery against the petitioner on the basis that he had availed holidays on 2nd Saturdays.
However, it is made clear that this Court has not made nay declaration to the effect that Sergeants working in KSRTC are entitled to avail holidays on 2nd Saturdays.
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C.K. ABDUL REHIM, JUDGE R.AV