The need for the State to act more magnanimously and not resort to recovery proceedings after a long period of time, considering the peculiar facts and circumstances of the case.

ORDER

1. Leave granted.

2. Non-grant of leave with pay for 10 days i.e. from 20th July, 1983 to 29th July, 1983, by the respondents, affecting huge financial loss to the appellant is the question involved in this appeal which arises out of a judgment and order dated 30-1-2006 passed by a Division Bench of the Kerala High Court.

3. Basic facts of the matter are not in dispute. The appellant was appointed as a Lower Primary School Assistant on leave vacancy on 20th January, 1982. Her services were terminated in March, 1982. She was again appointed in June, 1982 and her services were again terminated in August, 1982. She was further appointed in September, 1982, and again her services were terminated in November, 1982. The appellant however, obtained appointment on 8-7-1983 and her services were again discharged with effect from 19-8-1983. She availed 10 days' leave without pay and allowances during the aforesaid period. She was given a permanent appointment as High School Assistant with effect from 4-6-1984. While offering the said appointment her past services were taken into account. She was put on probation and leave for 10 days without allowances was also taken into consideration for the purpose of fixation of her pay. No objection was raised thereto for a long time. Only in the year 2000, an audit objection thereto was raised pursuant whereto and in furtherance whereof her salary for the said period was sought to be recovered. She filed a representation but the same having been rejected, she filed a writ petition before the Kerala High Court. A learned Single Judge of the High Court disposed of the said writ petition with a direction to the Deputy Director of Education to consider her representation within two months, pursuant whereto and in furtherance where of her representation was considered by the Deputy Director of Education. But the same was again rejected opining that as the appellant had availed 10 days' leave when she was entitled to only 1 day's leave, her services should have been terminated on that ground. A revision application filed by the appellant there against was also dismissed.

4. A direction to recover the excess salary purported to have drawn by her was issued by the Education Department. Aggrieved by and dissatisfied therewith she filed a writ application before the Kerala High Court. The learned Single Judge of the High Court by an order dated 3-7-2003 allowed the said writ application inter alia on the premise that such an objection should not have been raised on the part of the respondents after a long period of 15 years. An intra Court appeal preferred by the respondents herein has been allowed by the Division Bench of the Kerala High Court by reason of the impugned judgment.

5. Keeping in view the peculiar facts and circumstances of this case, we are of the petition that the State of Kerala should not have taken recourse to the recovery proceedings after such a long time.

6. Mr. K.P.K. Pillai, learned counsel appearing on behalf of the appellant points out that the said recovery proceedings were initiated only after audit objection was raised.

7. 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.