"To Issue An Order Or Direction ... vs This Court Has Heard Smt. ...
2021 Latest Caselaw 3173 AP

         HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU


                     WP.No.11521 of 2019
O R D E R:

This writ petition is filed for the following relief:

"To issue an order or direction more in the nature of Writ of Mandamus declaring that the action of the Respondents as illegal, irregular, highhanded against the of principals of natural justice i.e. in violation of Article 14 and 16 of Constitution of India in not issuing advance notice of my retirement in issuing impugned order in Roc.No.77/2013/F1 dated 02.07.2018 issued by the Commissioner of Municipal Administration directing petitioner to pay an amount of Rs.26,88,685/- then only the pension papers will be forwarded to settle the pension by issuing a writ of Mandamus and consequently set aside the impugned orders passed by the Commissioner of Municipality Chittoor District in proceedings Roc.No.77/2013/F1 Dated 02.07.2018 and pass.."

This Court has heard Smt. K.N.Vijayalakshmi, learned

counsel for the petitioner and Sri Suresh Kumar Kalava,

counsel appearing for the 4th respondent, who is the main

answering respondent.

The brief case of the petitioner is that she was allowed

to work as a Class-IV employee with the 4th respondent till

30.04.2018. The order by which she was directed to retire as

on 30.04.2013 is in dispute. Learned counsel for the

petitioner submits that the petitioner is an illiterate lady and

Class-IV employee. According to her, the impugned order

dated 02.07.2018 was issued stating that as per her date of

birth, she had to retire on 30.04.2013, but she continued to

work for a further period of five years. Therefore, the order

was passed on 02.07.2018 after her retirement to recover the

excess salary paid to her. Learned counsel assails this order

and states that the petitioner did not make any mis-

representation or fraud and that she was allowed to continue

in service. Respondents also did not looked into her recorded

date of birth and therefore, she was allowed to continue in

service. Relying upon State of Punjab and others v. Rafiq

Masih and others1, learned counsel argues that the Hon'ble

Supreme Court of India had given five situations in which the

recovery cannot be made, even if payment is made in excess

of the entitlement of the employee. Therefore, she prays for

an order.

In reply to this, learned counsel for the 4th respondent

argues that the petitioner also had the responsibility to retire

on the actual date of superannuation. He points out that she

is not entitled to continue to work and as she had unjustly

enriched herself, she was bound to refund the amount paid

over the five years. He also relies upon Government Memo

dated 30.10.2004, in which there is a reference to an order

passed by the Hon'ble Supreme Court of India in the

SLP.No.3721 of 1997 i.e. referred therein. Relying on this,

2015 (4) SCC 334

learned counsel for the answering respondents states that as

the petitioner therein did not have a right to continue in

employment, the Hon'ble Supreme Court held that he did not

have a right to claim any salary. Therefore, it is argued that

the petitioner had no right to claim the salary, the refund

should be ordered.

This Court after considering the submissions made,

notices that the memo referred to deals with a case wherein

an employee is claiming salary and other benefits for the

period beyond his superannuation. The case before this

Court is relating to an employee who has received the salary

already and the same is now proposed to be recovered.

Therefore, this Court is of the opinion that the judgment in

the case of Rafiq Masih (supra) is the appropriate decision to

be followed. The Hon'ble Supreme Court in Raiq Masih's

case was dealing specifically with the issue of refund of excess

payment. The Bench examined the earlier decisions and laid

down the law. There is a clear ratio in this case. The issue

before the Hon'ble Supreme Court was about recovery of the

monitory benefits, which was given in excess of their

entitlement. The Hon'ble Supreme Court also noticed like in

the present case that there was no allegation that the

employees were guilty of furnishing any incorrect information

which lead to the higher payment. After considering the law

on the subject, the Hon'ble Supreme Court laid down five

situations wherein recoveries would be impermissible in law,

which are as follows:

18. 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. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from 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."

If the present case is examined against this backdrop, it

is clear that the petitioner is not guilty of any fraud or

misrepresentation. The order impugned is dated 02.07.2018

which is after the retirement of the petitioner on 30.04.2018.

The impugned order also refers to the fact that she should

have retired on 30.04.2013 and that she actually worked till

30.04.2018. Therefore, it is clear that the order dated

02.07.2018 is issued after she has retired from service. She

is also a Class-IV employee.

In the opinion of this Court, the clauses (i) and (ii) of

para 18 of the judgment of the Hon'ble Supreme Court are

clearly applicable to the present facts. The petitioner is a

Class-IV employee and she has retired from service before the

impugned order was passed. Therefore, in view of the fact

that the case of the petitioner fits within the two categories

enumerated by the Hon'ble Supreme Court of India, this

Court is of the opinion that the recovery proposed to be made

is bad in law and contrary to the judgment of the Hon'ble

Supreme Court of India. The respondents cannot recover the

amounts said to have been paid in excess. The order dated

02.07.2018 proposing to recover is therefore set aside. As a

consequence of this, IA.No.1 of 2021 is also allowed. The

petitioner's pensionary benefits are directed to be settled.

Writ petition is therefore allowed. No order as to costs.

As a sequel, the other miscellaneous petitions if any shall

stand dismissed.

___________________________ D.V.S.S.SOMAYAJULU, J Date: 25.08.2021 KLP