Andhra Pradesh High Court - Amravati

Dr. M. Kishore Kumar, vs State Of Andhra Pradesh, on 22 February, 2022

      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

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*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

                                                                   NJS, J
                                                           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

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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

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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

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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

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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

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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.

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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.

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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

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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."

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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.