The Transport Corporation has preferred this appeal as against the dismissal of the suit in O.S.No.45 of 1993 on the file of the Sub Court, Kulithurai. Originally the appellant/Corporation filed a suit for recovery of a sum of Rs.1,53,567.16 with interest and cost as against the first respondent herein who was the first defendant.
2. The first respondent in the appeal was originally employed as a conductor from the year 1963. In the year 1971, the first respondent was transferred from Madras to Nagercoil and thereafter he joined duty as a conductor in the present Kattabomman Transport Corporation in the year 1974. As against the misappropriation of the funds committed by the first respondent, a charge memo was issued on 06.08.1974 for which he replied by a letter dated 08.08.1974. Not satisfied with the reply, the appellant/Transport Corporation appointed an enquiry officer and an enquiry was conducted.
3. Based on the enquiry report and subsequent to the notice, ultimately the first respondent was dismissed from service on 04.04.1975. Thereafter, on his representation, the punishment was modified as removal from service in the appeal filed by the first respondent by an order dated 13.06.1978. Thereafter, the first respondent filed a writ petition in W.P.No.4704 of 1978. The order in the writ petition was passed on 13.08.1981 to consider the appeal. Finally the appeal itself was dismissed confirming the punishment on 11.10.1982.
4. Challenging the order in the appeal the first respondent filed a writ petition in W.P.No.7486 of 1990 and W.P.No.4617 of 1988 which was jointly taken up together and ultimately by a virtue of order dated 01.08.1990 the writ petitions were allowed and ordered to reinstate the petitioner with seniority but without back wages. The Department preferred an appeal in W.A.No.1269 of 1990 as against the order passed in the writ petitions and ultimately in the order of the writ appeal dated 23.01.1991 the back wages alone was ordered on condition that the first respondent is to file an affidavit that he was not gainfully employed during the pendency of the case. As per the direction of the Division Bench in W.A.No.1269 of 1990 the first respondent filed an affidavit on 28.01.1991 in the Court. Subsequently on 06.04.1991 the appellant herein paid a sum of Rs.75,498.16/- to the first respondent after deducting P.F. and Income Tax from the total amount payable of Rs.1,53,567.16/- based on the affidavit filed by the first respondent that he was not gainfully employed.
5. Thereafter the plaintiff/Appellant herein came to know that the first respondent was living in Doha and he was gainfully employed in Doha. Hence they sent a show cause notice to the first respondent to repay the back wages as he has collected the money on the basis of the false affidavit. The first respondent sent a reply on 03.10.1991 denying the same. Thereafter the appellant took steps through Kerala High Court to summon the State Bank of Travancore to furnish bank account details of the first respondent so as to establish that he has been duly employed in Doha and he was transferring funds to his account in the State Bank of Travancore. By a virtue of an order dated 10.04.1992 in W.P.No.99 of 1992, the bank was directed to furnish the account particulars of the first respondent. Subsequently on 29.05.1992 and 17.06.1992 the respondent was called upon to repay the back wages . Though by a virtue of a letter dated 24.06.1992 the first respondent originally sought time to repay the wages and subsequently the respondent paid a sum of Rs.40,000/- repaid with a request to deduct the balance amount from his salary and that he may be considered for re-employment by virtue of his payment dated 02.07.1992. But even thereafter when the first respondent has failed to pay the amount the plaintiff has come forward with the suit for recovery of the original amount paid along with the interest and cost on 15.12.1993. The suit O.S.No.45 of 1993 was filed for which the defendant had filed a written statement contesting on merits.
6. In the written statement, the defendant would specifically plead that it is no doubt true that he was staying in Doha but he was not employed as a personal driver of the alleged Almalki and Company. He was never employed as a personal driver and he was staying along with his brother searching for a job and all his attempts for suitable job were only a exercise in futility. The first defendant has only opened the account with the State Bank of Travancore, Kollencode with a hope that if he gets a job at Quatar he can send his savings to the bank. Therefore as he was never employed he was not liable to repay the amount nor any amount is due and payable to them. In fact the defendant never filed any false affidavit before any Court of law and as the respondent was threatened with dire consequences and hoping to get some order of reinstatement reserving his right to contend on compulsion paid a portion of amount of Rs.40,000/-.
7. The first respondent paid a sum of Rs.40,000/- by way of Demand Draft, but he has never accepted the entire liability to pay. He was only threatened to repay the amount and only out of fear and non-employment the defendant had remitted the amount of Rs.40,000/- under protest and the notice has duly replied and the respondent would further contend that he not only liable to pay any amount as claimed by the plaintiff but he is entitled to get refund of Rs.40,000/-. In fact he would also further state that the defendant is also entitled to get more than Rs.1,53,567.16/-. Therefore the payment also made is not correct. He would also contend that the plaintiff had harassed the first defendant even during the employment period from refusing to give employment and specifically say that he was never gainfully employed. Both parties have let in evidence and ultimately the trial Court has dismissed the suit.
8. During the pendency of the appeal the respondents 4 to 8 have been brought on record as legal representatives of the deceased first respondent as per the order of this Court dated 17.06.2009.
9. Heard all the parties concerned.
10. The short point for consideration in the first appeal is whether the plaintiff is entitled for recovery of the amount which was originally paid to the first respondent by way of payment of back wages as per the Court order. In fact in the writ appeal a conditional order was passed that if the first respondent who was an employee files affidavit that he is not gainfully employed, then the back wages should be paid to him and pursuant to the said direction the first respondent has filed the affidavit on 28.01.1991 and thereafter an amount of Rs.75,498.16/- was paid after deducting the P.F. and Income tax from the total amount due as per the calculation of the appellant to the first respondent at Rs.1,53,567.16/-. This payment was made on 06.04.1991. It has been categorically stated that he was never gainfully employed by the defendant.
11. Infact the only contention made by the appellant is that they were able to trace out the bank accounts of the first respondent and they even went to the extent of filing the writ petition to seek the accounts copy from the bank and they have also impleaded the Income Tax Department as well as the Union of India represented by Secretary, Ministry of Finance for getting the documents so as to prove that the person had been sending money from Doha to his account in Kerala for the benefit of his family members and therefore it could be inferred that unless a person is employed in Doha he could not send the money in the account in bank in India.
12. The accounts have been verified, copies have been received which has been filed in the Court and the trial Court has given a clear and correct finding that as per the evidence of the parties and as per the records the amount which has been sent from Doha was not huge amount but as lesser amount of Rs.3,000/- and odd on occasions and it was also not a regular payment every month and sometimes there was a continuous gap in remittance of amounts to the bank account. Overall the finding and as per the evidence is that the total payment of money to the bank was not that of a regular employee sending the money to the family.
13. The Lower Court has also taken into consideration that the appellant has not taken any steps to produce the copy of the Visa particulars of the first respondent going to Doha, if only the appellant had taken any steps to produce the Visa particulars from the Ministry of External affairs they could have easily established that such a Visa is one of a work permit visa or a tourist Visa, because under law no person could be permitted to work in another country without a work permit Visa nor the appellant have taken steps to seek for the production of passport for the Visa endorsement thereon. It is not their case also that they had issued notice under
Section 65 of the Evidence Act to calling for production of documents namely the Visa particulars and it was refused so that adverse interference could be drawn. Contra, they had only taken steps to produce the bank account to establish the fact that there was money transaction from Doha to the first respondent account. This alone cannot establish the fact that the person has gainfully employed or violated the affidavit filed before the Court. In the cross examination the first respondent/defendant has categorically stated that from the year 1978-84, the defendant was residing in his house and thereafter he was residing in his brother's house and it was also established in the evidence that as per the Visa issued to the defendant he can stay in Quatar for any length of time in his relatives house and his brother had been helping him to maintain his family and the money which was sent to his bank account was obtained from his brother.
14. Therefore the appellant/plaintiff had not really proved in a manner known to law that the first respondent/defendant has been gainfully employed in Doha. It is also brought to the notice that pending the appeal, the respondent/defendant died and only legal representatives are on record. Therefore the money claimed was correctly and rightly dismissed by the trial Court as only if the appellant was able to establish that the person was gainfully employed he can be asked to surrender back the money. When this has not been done at all, the findings of the lower Court is correct and proper and no interference is called for.
14. In the result, the first appeal is dismissed. No costs.
cs To
1.The Sub Judge, Kulithurai.
2.Union of India, Rep. by Secretary, Ministry of Finance, New Delhi.
3.The Income Tax Officer, 171, S N High Road, Tirunelveli.