Madras High Court
S.Shanmugakani vs The Secretary To Government Of ... on 28 July, 2021
W.P.No.30015 of 2018
and W.M.P.No.35032 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :28.07.2021
CORAM
THE HON'BLE MR.JUSTICE M.S.RAMESH
W.P.No.30015 of 2018
and
W.M.P.No.35032 of 2018
S.Shanmugakani ... Petitioner
Vs.
1.The Secretary to Government of India,
Ministry of Personnel,
Public Grievances & Pensions Department of Personnel and Training,
New Delhi.
2.The Assistant General Manager,
State Bank of India,
No.112/4, Kalamman Koil Street,
Virugambakkam, Chennai – 92.
3.The Branch Manager,
State Bank of India,
Selaiyur Branch,
East Tambaram, Chennai. ... Respondents
Prayer: Petition under Article 226 of the Constitution of India praying for
issuance of Writ of Certiorarified Mandamus, to call for the records of the
second respondent's letter No.REV/Recvy-98568 dated 25.10.2018 with
consequential direction to the respondents to refund the amount of
Rs.10,000/- (Rupees ten thousand only) recovered from the pension account
within time frame.
1
https://www.mhc.tn.gov.in/judis/
W.P.No.30015 of 2018
and W.M.P.No.35032 of 2018
For Petitioner : M/s.K.Jenitha
For R1 : No appearance
For R2 & R3 : Mr.K.Chandrasekaran
ORDER
By consent of both the parties, this writ petition is taken up for
final disposal.
2. The respondents herein, through their impugned order dated
25.10.2018, had sought to recover an amount of Rs.1,68,684/- for the period
between 01.10.2018 to 29.02.2020, claiming an excess amount paid, in
petitioner's pension account.
3. The learned counsel for the petitioner submitted that the
petitioner had retired from his service on 30.06.2016, and after about three
years, they were taken by surprise, through the impugned recovery order
and no prior show-cause notice was issued. It is also the submission of the
learned counsel for the petitioner that though this Court had passed the
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W.P.No.30015 of 2018
and W.M.P.No.35032 of 2018
order of interim stay of the impugned order on 22.11.2018, the respondents
had continued with the recovery and had further, issued an other order dated
12.12.2018, for recovery of a sum of Rs.2,40,418/- for alleged excess
payment made between 01.12.2018 to 31.08.2021.
4. Apart from the aforesaid submissions, the learned counsel
placed reliance on the decision of the Hon'ble Supreme Court in the case of
State of Punjab & Others vs. Rafiq Masih (White Washer) & Others.,
reported in (2015) 4 SCC 334 and submitted that recovery from retired
employees of payments, that have been mistakenly made by the employer,
are impermissible in law.
5. Per contra, the learned Standing Counsel for the respondents /
Bank, submitted that the ratio laid down by the Hon'ble Supreme Court in
White Washer's case (Supra), has been distinguished by a subsequent
judgment of the Hon'ble Supreme Court in the Case of the High Court of
Punjab and Haryana & Others vs. Jagdeep Singh, reported in (2016) 14
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W.P.No.30015 of 2018
and W.M.P.No.35032 of 2018
SCC 267, whereby, it was clarified that whenever a retired employee gives
prior undertaking accepting for recovery of any excess amount that may
have been paid, the ratio laid down by the Hon'ble Supreme Court in the
White Washer's case for prohibiting recovery of excess amount from the
retired employees, will not be applicable.
6. Apart from such a submission, Mr.K.Chandrasekaran, the
learned Standing Counsel, placed reliance on the averments made in the
counter affidavit and stated that the respondents / Bank, are justified in
recovering the excess amount, which has been mistakenly paid to the
petitioner.
7. Insofar as the ground raised by the petitioner herein is
concerned, it is not in dispute that the respondents herein had not issued any
show-cause notice, prior to the impugned recovery order, calling upon the
petitioner's objections. Neither the impugned order nor the counter affidavit
disputes this fact. It is a settled proposition of law that whenever such
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W.P.No.30015 of 2018
and W.M.P.No.35032 of 2018
prejudicial steps are taken, resulting in recovery of pecuniary benefits, the
Authorities concerned are required to call for the objections from the
concerned employee, before passing of the final orders. In the absence of
such a show-cause notice, the order of recovery would be in violation of the
principles of natural justice and hence cannot be sustained.
8. This apart, it is seen, when the petitioner had chosen to
challenge the impugned recovery order dated 25.10.2018, this Court had
taken note of the decision in White Washer's case and had stayed the
impugned order on 22.11.2018. Instead of complying with the interim order,
the respondents have chosen to implement the recovery order, by deducting
the alleged excess amount from the monthly pension of the petitioner. In
addition to the same, when this writ petition was pending, the respondents
had once again chosen to issue another recovery order dated 12.12.2018,
informing the initiation of recovery action, for a sum of Rs.2,40,418/-
claiming it as the excess paid pension amount between the period
01.12.2018 to 31.08.2021. Incidentally, the period covered in the second
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W.P.No.30015 of 2018
and W.M.P.No.35032 of 2018
order dated 12.12.2018, merges with the period covered under the first
impugned order dated 25.10.2018, which was between the month of
01.10.2018 to 29.02.2020. The conduct of the respondents, in this regard, is
totally condemnable. When the petitioner herein, had challenged the very
authority of the respondents, to recover the amount of the excess payment
from the petitioner's pension and the issue was pending consideration before
this Court, in all fairness, the respondents ought to have awaited for the
outcome of the writ petition, instead of resorting to the second recovery
order for the same period, which is covered under the first impugned order,
more particularly, when this Court had passed interim orders of stay of the
order for recovery of the alleged excess payments made between 01.10.2018
to 29.02.2020. Apparently, the conduct of the respondents may amount to
contempt the interim orders passed by this Court.
9. Since, this Court has found the impugned order to be illegal, in
the absence of show-cause notice, and also this Court intends to give
opportunity to the Authorities to issue show-cause notice, proposing for the
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W.P.No.30015 of 2018
and W.M.P.No.35032 of 2018
recovery of the alleged excess payment, the sanctity of the grounds raised
by the respondents on the permissibility for recovery from retired employee,
is not addressed.
10. At this juncture, the learned counsel for the petitioner
submitted that a part of the amount in the impugned order, which has
already been recovered, has been refunded back to the petitioner. In view of
the observations made in this order, no further recovery can be permitted,
since the order itself is in violation of the principles of natural justice.
However, if the respondents are granted opportunity to issue a fresh show-
cause notice, calling for the petitioner's explanation and the issue as to
whether recovery could be made from a retired employee, is left open for
deliberation, the ends of justice could be secured.
11. In the light of the above observations, the impugned order
dated 25.10.2018 is quashed. However, in case the respondents 2 and 3 are
of the view that their has been some excess payments made, which they are
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W.P.No.30015 of 2018
and W.M.P.No.35032 of 2018
entitled to recover, liberty is hereby granted to issue a prior show-cause
notice for the proposed recovery of the alleged excess payment, within a
period of two weeks from the date of receipt of a copy of this order. After
issuance of such show-cause notice, the respondents 2 and 3 shall consider
the petitioner's objections to the show-cause notice, if any and thereafter
take further course of action in accordance with law.
12. The writ petition stands allowed, accordingly. No costs.
Consequently, connected miscellaneous petition is closed.
28.07.2021
Index:Yes/No
Speaking order / non-speaking order
Pns
https://www.mhc.tn.gov.in/judis/
W.P.No.30015 of 2018
and W.M.P.No.35032 of 2018
To
1.The Secretary to Government of India,
Ministry of Personnel,
Public Grievances & Pensions Department of Personnel and Training,
New Delhi.
2.The Assistant General Manager,
State Bank of India,
No.112/4, Kalamman Koil Street,
Virugambakkam, Chennai – 92.
3.The Branch Manager,
State Bank of India,
Selaiyur Branch,
East Tambaram, Chennai.
M.S.RAMESH, J.
https://www.mhc.tn.gov.in/judis/
W.P.No.30015 of 2018
and W.M.P.No.35032 of 2018
Pns
W.P.No.30015 of 2018
and
W.M.P.No.35032 of 2018
28.07.2021
https://www.mhc.tn.gov.in/judis/
