HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI
WRIT PETITION No.13419 OF 2021
Between:
Dr.M.Kishore Kumar, S/o Sri M.Mashak,
Aged about 61 years, Occupation : Retired
Civil Surgeon, R/o Flat No.502, Anjani
Classic, South Jail Road, Dhaba Gardens,
Visakhapatnam. .... Petitioner
And
1) State of Andhra Pradesh, rep. by its
Principal Secretary, Department of Health
& Family Welfare, Secretariat, Velagapudi,
Amaravathi, Guntur District.
2) The Director, Public Health & Family
Welfare Department, Gollapudi, Vijayawada
Rural, Krishna District, Andhra Pradesh -
521 225.
3) The Regional Director, Medical and Health
Service, Visakhapatnam, Visakhapatnam
District, Andhra Pradesh. .... Respondents
DATE OF ORDER PRONOUNCED: 22.02.2022 THE HON'BLE SRI JUSTICE NINALA JAYASURYA
1. Whether Reporters of Local newspapers Yes/No may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No Marked to Law Reporters/Journals.
3. Whether Their ladyship/Lordship wish Yes/No to see the fair copy of the Judgment?
_________________________ NAINALA JAYASURYA, J 2 NJS, J wp_13419_2021 *THE HON'BLE SRI JUSTICE NINALA JAYASURYA + WRIT PETITION No.13419 of 2021 %Date : 22.02.2022 # Dr.M.Kishore Kumar --- Petitioner Versus $ State of Andhra Pradesh, rep. by its Principal Secretary, Department of Health & Family Welfare, Secretariat, Velagapudi, Amaravathi, Guntur District and two others.
--- Respondents ! Counsel for the Petitioner : Mr.G.R.Sudhakar ^ Counsel for Respondents : Government Pleader for Services-IV < GIST : --
> HEAD NOTE : --
? Cases referred : -- 1) (1994) 2 SCC 521
2) 2015 (4) SCC 344
3) 2013 (12) SCC 210
4) (2009) 3 SCC 475
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wp_13419_2021
HON'BLE SRI JUSTICE NINALA JAYASURYA
WRIT PETITION No.13419 of 2021
ORDER:-
The present Writ Petition is filed aggrieved by the action of respondents in issuing Memo No.A1/172/2020 dated 01.12.2020, seeking, recovery of excess pay and allowances made to the petitioner from 01.04.1994 to 11.05.2010, as illegal, arbitrary, violative of Articles 14, 16 and 21 of the Constitution of India and for a consequential direction to pay the retirement benefits and pension to the petitioner, by setting aside the said Memo.
2. Heard Mr.G.R. Sudhakar, learned counsel for the petitioner and the learned Government Pleader for Services-IV, appearing for the respondents.
3. The petitioner was appointed as Civil Assistant Surgeon on 14.01.1992. He worked at various places and retired from services on 31.01.2020 on attaining the age of superannuation, after rendering 32 years of service. As the retirement benefits were not released and pension is not being paid, the petitioner approached respondents 2 and 3 on several occasions, but the same did not yield any response. Ultimately, the petitioner was informed that he has drawn excess pay and allowances from 01.04.1994 to 11.05.2010 and the same is sought to be recovered as per Memo dated 01.12.2020 of the 2nd respondent. After waiting for considerable time, the petitioner got issued a legal notice on 28.04.2021 requesting the respondents to release the retirement benefits and pay pension as per Rules, with 4 NJS, J wp_13419_2021 interest at the rate of 12% per annum. Despite receipt of the said notice, the respondents did not move in the matter nor issued any reply to the said notice and in such circumstances, the petitioner invoked extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, seeking the reliefs as prayed for.
4. The learned counsel for petitioner, inter alia, contends that the action of respondents seeking to recover pay and allowances allegedly paid in excess to the petitioner is unjust, arbitrary and unsustainable. He submits that the payment allegedly made wrongly to the petitioner dates back to the period from 01.04.1994 to 11.05.2010 i.e., more than 27 years ago and recovery of the same would affect the petitioner's financial capacity, causes a serious dent to his post retirement life. He further submits that the impugned Memo is not sustainable, in as much as, no notice was issued at any point of time and straight away the Memo dated 01.12.2020, which is in the nature of an order has been issued to recover the alleged excess pay and allowances from the petitioner and remit the same to the Government's account. The learned counsel submits that the petitioner has no role in fixation of pay and allowances and therefore he cannot be made responsible for the alleged excess payment made to him by the department. The learned counsel further contends that the retirement benefits and pension are the fundamental rights guaranteed under Article 21 of the Constitution of India and as such the petitioner cannot be deprived of the same. He submits that the Government can withhold pension or withdraw pension only in terms of Rule 9 of the Andhra Pradesh Revised Pension Rules, 1980 and 5 NJS, J wp_13419_2021 that the same has no application to the facts of the present case. He submits that in view of non-payment of monthly pension, the petitioner is subjected to mental agony and financial difficulties. The learned counsel while placing reliance on the judgments of the Hon'ble Supreme Court in Shyam Babu Verma v. Union of India1 and State of Punjab v. Rafiq Masih2 contends that even assuming without conceding, the excess payment cannot be recovered after long lapse of time, that too when the petitioner is no way responsible for the same. He also submits that as per the expression of the Hon'ble Supreme Court, in the said judgments, recovery of excess payments five years after the alleged payment would be iniquitous, arbitrary and therefore the impugned Memo is liable to set aside, as the recovery sought to be made is in respect of the period from 01.04.1994 to 11.05.2010.
5. On the other hand, the learned Government Pleader for Services-IV refuted the said contentions and submits that the respondents are justified in taking steps to recover the amounts from the petitioner, as he has drawn excess amounts. Referring to the averments in the Counter Affidavit, he submits that in the process of fixation of pay of the petitioner on his promotion as Addl. DM & HO., the Service Register of the petitioner was submitted to the Office of the Director of Public Health and Family Welfare and at that point of time, it was observed that excess payment was made to the petitioner. In elaboration, he submits that the petitioner was appointed as Civil Assistant Surgeon and reported to duty on 1 (1994) 2 SCC 521 2 2015 (4) SCC 344 6 NJS, J wp_13419_2021 14.01.1992 and his probation was declared on 11.05.2010 i.e., from the date of passing of departmental tests and the second and subsequent annual grade increments were released with effect from 01.04.1994, even though his probation was completed on 11.05.2010, contrary to F.R.24 r/w F.R.31-A(2)(i)(a), which provides for drawal of increments by the probationers. Under the said circumstances, the learned Government Pleader submits that the Memo dated 01.12.2020 was issued, as the petitioner is entitled to increments with effect from 12.05.2010 only. He also submits that the petitioner has not submitted the pension papers and not refunded the excess payment made to him. In any event, he submits that the action of the respondents cannot be found fault with. In facts and circumstances of the case, he submits that the Writ Petition is liable to be dismissed.
6. The learned counsel for the petitioner in reply strenuously submits that the petitioner had submitted pension papers prior to his retirement. While reiterating his contention that no notice was issued at any point of time when the petitioner was in service or on attaining his age of superannuation about the alleged excess payment or even after issuance of legal notice, he further submits that the stand taken by the respondents about the alleged excess payment is only an afterthought to justify their inaction in settlement of retirement benefits of the petitioner. The learned counsel draws the attention of this Court to the G.O.Ms.No.100, Finance (HR.III.Pension-I) Department, dated 27.06.2018 and submits that the concerned Pension Sanctioning Authority would update and 7 NJS, J wp_13419_2021 certify the Service Book of the concerned Government employee and send the same to the Office of the Accountant General (A&E)/District Audit Officer, as the case may be, at least 90 days prior to the date of retirement of the employee. He submits that the petitioner retired from service on 31.01.2020 and after lapse of more than 1 ½ years, the respondents state that pension papers were not submitted by the petitioner, which is absolutely incorrect and invented to justify the action of the respondents in delaying the payment of pension. He also submits that the petitioner had not played any fraud or misrepresented to the authorities with regard to fixation of increments or his entitlement to the same. He submits that the petitioner is suffering from old age related diseases and he is in dire need of his retirement benefits, which are due and payable from 31.01.2020 and regular monthly pension, but due to impugned action of the respondents, he is deprived of the same and therefore the petitioner is also entitled to the interest at the rate of 12% per annum on the amounts, which are due and payable to the petitioner. He accordingly urges for allowing the Writ Petition with the interest on the amounts due to the petitioner.
7. On a careful scrutiny of the matter, the only point that falls for consideration by this Court is as to whether the action of the respondents in seeking to recover the alleged excess payment made to the petitioner is permissible, in the facts and circumstances of the case?
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8. From a reading of the material on record, the following undisputed facts emerge:-
a) The petitioner was appointed as Civil Assistant Surgeon on 14.01.1992;
b) He retired from service on 31.01.2020;
c) There are no departmental proceedings which are pending;
d) The impugned Memo for recovery of the amounts with regard to excess payment for the period from 01.04.1994 to 11.05.2010 was issued on 01.12.2020 i.e., after the petitioner retired from service;
e) Prior to the issuance of impugned Memo, no notice is issued to the petitioner with regard to the alleged excess payment, much less issuance of show cause notice as to why the said amount shall not be recovered;
f) The retirement benefits of the petitioner are not paid, though he retired from service on 31.01.2020;
g) Pension of the petitioner is not fixed so far.
9. Before delving upon the point for consideration, it may be mentioned here that the retirement benefits and pension is in the nature of property falling under Article 300-A of the Constitution of India and it constitutes a fundamental right to have a dignified livelihood under the ambit of Article 21 of the Constitution of India. The Hon'ble Supreme Court in the State of Jharkhand v. Jitendra Kumar Srivatsava3 held that pension is not a bounty, but property that cannot be taken away without due process of Law.
10. In the present case, as seen from the Memo impugned in the Writ Petition, the amount sought to be recovered is with regard to increments. It is the case of the respondents that the petitioner has drawn excess amount in respect of the same from 01.04.1994 to 11.05.2010. The said alleged excess payment, was noticed by the 3 2013 (12) SCC 210 9 NJS, J wp_13419_2021 respondents at the time of examining the proposals for fixation of the petitioner's pay in the promotional cadre of Addl. DM & HO on 05.10.2020 i.e., after retirement of the petitioner on 31.01.2020. So far as increments are concerned the same would be granted subject to the eligibility of the concerned employee and if the same are allowed by the department, the concerned employee cannot be found fault with. It is not the case of the respondents that the petitioner herein is responsible for irregular fixation or grant of increments or that he has played fraud or misrepresented to the authorities for getting undue advantage in that regard. In the absence of the same, the action initiated by the respondents for recovery of the alleged excess payment is impermissible. Even if the argument of the learned Government Pleader that amounts are paid in excess to the petitioner is accepted, the same cannot be allowed to be recovered at this length of time i.e., more than five years after the alleged excess payment, that too after the retirement of the petitioner. In this regard, it may be appropriate to refer to the judgments relied on by the learned counsel for the petitioner.
11. In Shyam Babu Verma's case referred to supra, higher scale of pay was fixed to an employee erroneously in the year 1973. The same was sought to be recovered in the year 1984 i.e., after a period of eleven years. The Hon'ble Supreme Court held that recovery after several years of the implementation of the pay scale would not be just or proper and opined that recovery of excess payments discovered after five years would be iniquitous and arbitrary, as also violative of Article 14 of the Constitution of India. 10
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12. The Hon'ble Supreme Court in a subsequent judgment in Rafiq Masih's case referred to supra, laid down the parameters of fact situations, wherein employees, who are beneficiaries of wrongful monetary gains at the hands of the employer, may not be compelled to refund the same. The Hon'ble Supreme Court considered the earlier judgments including Shyam Babu Verma's case etc., extensively and summarized few situations, wherein recoveries by the employers would be impermissible in Law.
13. The Hon'ble Supreme Court while categorically stating that instant benefit cannot extend to an employer merely on account of the fact, that he was not an accessory to the mistake committed by the employer; or merely because employee did not furnish any factually incorrect information, on the basis whereof the employer committed the mistake of paying the employee more than what was rightfully due to him; or for that matter, merely because the excessive payment was made to the employee, in the absence of any fraud or misrepresentation at the behest of the employee, held that the orders passed by the employer seeking recovery of the monetary benefits wrongly extended to the employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. As per the expression of the Hon'ble Supreme Court, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. 11
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14. The Hon'ble Supreme Court in the said judgment while referring to the case of Syed Abdul Qadir v. State of Bihar4 opined that "if the mistake of wrongful payment is detected within five years it would be open to the employer to recover the same and that if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee".
It would be apposite to extract relevant portion of the judgment, which reads thus:
Para 13: "First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir's case recognized, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorized payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time."
15. The Hon'ble Supreme Court at Para 16 of the judgment further opined that "recovery of excess payments, made from the employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. 4 (2009) 3 SCC 475 12 NJS, J wp_13419_2021 Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger".
Observing so, the Hon'ble Supreme Court opined that a period of one year from the date of superannuation, should be accepted as the period during which the recovery should be treated as iniquitous and that it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year from the date of his retirement on superannuation.
16. After ultimate analysis of the relevant Case Law, the Hon'ble Supreme Court at Para 18 of the judgment while stating that it is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement, summarized the following few situations, wherein recoveries by the employers, would be impermissible in Law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."13
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17. The above said judgment of the Hon'ble Supreme Court applies in all fours to the case on hand. In the light of the expression of the Hon'ble Supreme Court in Rafiq Masih's case referred to supra, the impugned Memo is liable to be set aside, in as much as, the excess payment, as stated above, relates to the period from 01.04.1994 to 11.05.2010, which is noticed, even according to the respondents only in the year 2020 i.e., more than five years after effecting excess payment and it would be extremely iniquitous and arbitrary to seek a refund of the payment mistakenly made to the petitioner. Further, the case of the petitioner also falls under the situations summarized by the Hon'ble Supreme Court referred to supra, that it would be impermissible to effect recoveries from the retired employees or the employees, who are due to retire within one year, of the order of recovery. As noted earlier, no disciplinary proceedings are pending against the petitioner. Under such circumstances, withholding of retirement benefits under the guise of the impugned Memo is unjust, arbitrary, contrary to the judgment of the Hon'ble Supreme Court in Rafiq Masih's case referred to supra and constitutes violation of the petitioner's rights guaranteed under Article 21 of the Constitution of India. Therefore, in view of the undisputed factual and legal position, this Court finds merit in submissions made by the learned counsel for petitioner. Accordingly, the same are upheld and the contentions raised by the learned Government Pleader are rejected.14
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18. So far as the contention with regard to payment of pension is concerned, though a plea is taken by the respondents that the petitioner has not submitted pension papers, the same has been vehemently denied by the learned counsel for petitioner. From a perusal of the record, it would appear that there is some delay in submitting the pension proposals, for which the petitioner cannot be found fault with. Be that as it may. In the light of the submissions made by the learned counsel for petitioner, supported by the judgments of the Hon'ble Apex Court, the Writ Petition deserves to be allowed.
19. Accordingly, the Memo No.A1/172/2020 dated 01.12.2020 is set aside. The respondents are directed to pay the retirement benefits to the petitioner and fix the pension, within a period of two (02) weeks from the date of receipt of a copy of this order. In the event, the retirement benefits are not paid within the stipulated time, the respondents shall pay interest at the rate of 12% per annum on the retirement benefits from the date of petitioner's retirement from service, till the date of payment.
20. The Writ Petition is accordingly allowed, as indicated above. No order as to costs.
As a sequel, miscellaneous applications, if any, pending shall stand disposed of.
__________________ NINALA JAYASURYA, J Date: 22.02.2022 IS 15 NJS, J wp_13419_2021 HON'BLE SRI JUSTICE NINALA JAYASURYA Writ Petition No.13419 of 2021 Date: 22.02.2022 IS