Madras High Court

The State Of Tamil Nadu vs A.Amerthian on 29 June, 2021

                                                                               W.A.No.506 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                  DATED : 29.06.2021
                                                        CORAM
                                     The Hon'ble Mrs.Justice Pushpa Sathyanarayana
                                                           and
                                      The Hon'ble Mr.Justice Krishnan Ramasamy

                                                   W.A. No.506 of 2021
                                                           and
                                                  C.M.P. No.1993 of 2021

                     1. The State of Tamil Nadu
                        rep. by the Secretary,
                        Home Department,
                        Fort St. George, Chennai -9.

                     2. The Director General of Police,
                        Santhome, Chennai -4.

                     3. The Superintendent of Police,
                        Kanniyakumari District, Nagercoil.                         ... Appellants

                                                            vs
                     A.Amerthian                                                   ...Respondent

                     Prayer: -Writ Appeal filed under clause 15 of the Letters Patent against the
                     order dated 13.02.2019, made in W.P. No.21526 of 2009.
                                                          ****
                                      For Appellants        : Mr.R.Neelakandan
                                                               State Government Pleader

                                      For Respondent         :   Mr.A.R.Karunakaran


                     1


https://www.mhc.tn.gov.in/judis/
                                                                                     W.A.No.506 of 2021

                                                          JUDGMENT

(Delivered by Krishnan Ramasamy,J.,)

This an in-house Appeal, challenging the order, dated 13.02.2019,

passed in W.P.No.21526 of 2009.

2. The appellants herein are the respondents in the aforesaid Writ

Petition and the respondent herein is the writ petitioner, and they shall be

referred to as such throughout this judgment for the sake of easy reference

and understanding.

3. The brief facts of the case are as follows:-

i) The writ petitioner was enlisted as Direct Grade I Police

Constable on 01.02.1972. Subsequently, he was promoted as Head

Constable w.e.f. 24.06.1985 and upgraded as Special Sub-Inspector of

Police on 01.06.2002. Since the writ petitioner's immediate junior was

promoted as Special Sub-Inspector of Police on 01.06.1998, i.e. four years

prior to the writ petitioner, the writ petitioner gave a representation to the

appellants to treat him on par with his junior and to grant promotion as

https://www.mhc.tn.gov.in/judis/ W.A.No.506 of 2021

Special Sub Inspector of Police, i.e. from 01.06.1998 together with all

benefits and backwages. Since the said representation was not considered,

he was constrained to file a Writ Petition, in W.P.No.27223 of 2005. This

Court, by order, dated 28.02.2006, disposed of the Writ Petition with a

direction to the appellants to consider the representation. In the meantime,

the writ petitioner attained the age of superannuation and was allowed to

retire from service on 30.04.2007. Thus, the writ petitioner has put in 35

years of impeccable service and was retired on 30.04.2007.

ii) While that being so, the Government, by its order, dated

30.01.2009, passed in G.O.(Ms). No.98 of Home (Police-3) Department

(hereinafter, referred to G.O.(Ms) No.98) approved the writ petitioner's

upgradation as Special Sub-Inspector of Police w.e.f. 01.06.1998, but

simultaneously, ordered for reduction of his pay by three stages from

01.06.2002, i.e, from the date of his upgradation as Special Sub-Inspector of

Police. Aggrieved thereby, he made a representation stating that the

reduction of pay was not warranted. However, by virtue of the said

Government Order, the third respondent, vide proceedings, dated

https://www.mhc.tn.gov.in/judis/ W.A.No.506 of 2021

16.07.2009, which was served on the petitioner on 08.09.2009, re-fixed the

writ petitioner's pay from 31.05.1998 and consequently, ordered for

recovery of pay and allowance. Challenging the same, the writ petitioner

filed W.P.No.21526 of 2009. The said writ petition was allowed and the

impugned order was set aside. Hence, the present Writ Appeal.

4. Mr.R.Neelakandan, the learned State Government Pleader

appearing for the appellants would submit that the writ petitioner was

originally promoted as Special Sub-Inspector of Police w.e.f. 01.06.2002.

Subsequently, by virtue of G.O.(Ms) No.98, dated 30.01.2009, the writ

petitioner was given upgradation as Special Sub-Inspector of Police, by

advancing the date from 01.06.2002 to 01.06.1998. During the interregnum

period of four years, the writ petitioner, in the capacity of Head Constable,

was drawing a Personal Pay (P.P.) at 5%, which comes around Rs.280/-per

month, to which, he is not entitled to, due to his upgradation as Special

Sub-Inspector of Police w.e.f. 01.06.1998.

4.1 Thus, the learned Government Pleader contended that the writ

https://www.mhc.tn.gov.in/judis/ W.A.No.506 of 2021

petitioner has been allowed to enjoy the benefits in two ways. One in the

capacity of Head Constable, he was receiving the P.P. at 5% from

01.06.1998 to 01.06.2002 (four years). Secondly, the writ petitioner, based

on G.O.(Ms).No.98, dated 30.01.2009, given upgradation as Special Sub-

Inspector of Police and was paid with all benefits for the aforementioned

four years. Therefore, the learned Government Pleader contended that, the

writ petitioner is not entitled to relish both the benefits as Special Sub-

Inspector of Police and Head Constable, and therefore, by virtue of the

Government Order, dated 30.01.2009, recovery proceedings were initiated

against the writ petitioner, by order dated 16.07.2009, to recover the

personal pay paid to him from 01.06.1998 to 01.06.2002, as the same is

refundable to the appellants. Therefore, he contended that the impugned

order is not sustainable and liable to be set aside.

5. Per contra, Mr.A.R.Karunakaran, the learned counsel appearing

for the writ petitioner/respondent submitted that the writ petitioner admitted

the fact that he is receiving 5% P.P, (viz., Rs.280/-) as Head Constable

w.e.f. 01.06.1998 to 31.05.2002. The writ petitioner's junior was upgraded

https://www.mhc.tn.gov.in/judis/ W.A.No.506 of 2021

as Special Sub-Inspector of Police as early as on 31.05.1998. Therefore, the

writ petitioner gave representation. Since the representation evoked no

response, he filed W.P.No.27223 of 2005, and this Court, by order, dated

28.02.2006 directed to dispose of the representation. Thus, the learned

counsel contended that only after making representation and filing Writ

Petition, the request of the writ petitioner was considered and upgradation

as Special Sub-Inspector of Police was granted with retrospective effect

from 01.06.1998. Therefore, the recovery proceedings initiated against the

writ petitioner, after the writ petitioner was allowed to retire from service

i.e. on 30.04.2007 is highly arbitrary. The learned counsel to buttress his

contention that no recovery proceedings can be initiated against a retired

employee, relied upon a decision of the Hon'ble Supreme Court, in the case

of State of Punjab and others Vs. Rafiq Masih (White Washer) and others,

reported in (2015) 4 SCC 334, (hereinafter, referred to as (“White

Washer case”).

5.1. Thus, the learned counsel by referring to the law laid down by

https://www.mhc.tn.gov.in/judis/ W.A.No.506 of 2021

the Hon'ble Supreme Court, contended that the appellants are not entitled to

initiate recovery proceedings against the writ petitioner by virtue of

G.O.(Ms).No.98, dated 30.01.2009, that too, two years later, after he was

allowed to retire from service 30.04.2007. The contention of the learned

Government Pleader that the writ petitioner cannot be allowed to enjoy two

benefits is not tenable for the reason that, it is purely owing to the fault on

the part of the appellants, the writ petitioner was not upgraded as Special

Sub-Inspector of Police at the earliest point of time i.e. on 01.06.1998, and

only when he battled for it, the same was granted, and during those period,

the writ petitioner was discharging his duty in the capacity of Head

Constable, therefore, for the fault committed by the appellants, the writ

petitioner cannot be made liable, that too, after retirement. Therefore, he

contended that after allowing the writ petitioner to retire from service, no

recovery, which has been paid either inadvertently or otherwise shall be

initiated as per the law laid down by the Hon'ble Supreme Court in the

above referred case. Therefore, he prayed for dismissal of the Writ Appeal.

6. We have heard the learned counsel for both sides and perused

https://www.mhc.tn.gov.in/judis/ W.A.No.506 of 2021

the materials on records.

7. The writ petitioner was working as Head Constable from

01.06.1998 till 31.05.2002, but on 01.06.1998 itself, the writ petitioner's

immediate junior was promoted as Special Sub-Inspector of Police from

Head Constable. Therefore, the writ petitioner approached the appellants by

virtue of a representation to treat him par with his junior and to grant

upgradation as Special Sub-Inspector of Police w.e.f. 01.06.1998. The said

representation was not considered. Hence, the writ petitioner filed Writ

Petition No.27223 of 2005. After getting an order in his favour from this

Court, vide dated 28.02.2006, the writ petitioner was upgraded as Special

Sub-Inspector of Police from Head Constable w.e.f. 01.06.1998, vide

G.O.(Ms) No.98, dated 30.01.2009. In this context, reference may be made

to para No.3 of the said Government Order, which reads as follows:-

“The Director General of Police, Chennai, has also stated that S.Amirthaiyan, Special Sub Inspector of Police (now retired) of Kaniyakumari District may loose 5% p.p of Rs.280/- which was already

https://www.mhc.tn.gov.in/judis/ W.A.No.506 of 2021

sanctioned w.e.f. 01.06.1998 in the category of Head constable (SG) as per G.O.Ms.No.497, Finance dated 05.09.1998, consequently, his pay will be reduced by three stages w.e.f. 01.06.2002 i.e. the date of his upgradation as Special Sub Inspector of Police (i.e. from 6950/- to 6500/- thus no financial implication will arise in the proposal of advancement of upgradation as Special Sub Inspector of Police w.e.f.

01.06.1998 in respect of Amerthaiyan, Kanyakumari District. Hence, the Director General of Police, Chennai, has requested that necessary orders may be issued conferring the status of Special Sub Inspector of Police to Thiru.A.Amirthaiyan (Head Constable 1242) Kanyakumari District by advancing the date from 01.06.2002 to 01.06.1998.”

7.1. Thus, by virtue of the above referred Government Order, the

appellants have initiated the recovery proceedings against the writ

petitioner, by order dated 16.07.2009. Challenging the recovery

proceedings, Writ Petition, which is on Appeal before us, was filed and the

learned Single Judge has elaborately dealt with the matter in issue and by

following the law laid down by the Hon'ble Supreme Court in White

https://www.mhc.tn.gov.in/judis/ W.A.No.506 of 2021

Washer case (cited supra) held that no recovery proceedings can be

initiated against a retired employee. Consequently, the learned Single Judge

allowed the Writ Petition and quashed the impugned order, insofar as

recovery is concerned.

7.2 We have gone through all the documents filed in support of the

Writ Petition by the writ petitioner as well as the order of the learned Single

Judge, which would show that the writ petitioner was upgraded to Special

Sub-Inspector of Police from Head Constable and the same was advanced

from 01.06.2002 to 01.06.1998.

7.3 Now, the issue that falls for consideration before us is as to

whether the appellants are entitled to recover 5% p.p. from the writ

petitioner for the period from 01.06.1998 to 31.05.2002 by virtue of

G.O.(Ms).No.98, dated 30.01.2009. It is an undisputed fact that the

appellants ought to have given upgradation to the writ petitioner as Special

Sub-Inspector of Police w.e.f. 01.06.1998, but they have failed to do so.

Therefore, from 01.06.1998 till 31.05.2002, the writ petitioner was working

https://www.mhc.tn.gov.in/judis/ W.A.No.506 of 2021

as Head Constable, and during that period, he was entitled for 5% p.p.

Accordingly, he received. It is only due to the failure on the part of the

appellants to promote the writ petitioner as Special Sub-Inspector of Police

w.e.f. 01.06.1998, instead of 01.06.2002, the writ petitioner was denied the

benefits, which ought to have been given to him in the capacity as Special

Sub-Inspector of Police from 01.06.1998 to 31.05.2002. Initially, the writ

petitioner was upgraded as Special Sub-Inspector of Police w.e.f.

01.06.2002. The said order was rectified consequent to the representation

made by the writ petitioner. Thereafter, G.O.(Ms).No.98 dated 30.01.2009

was passed. In the meantime, the writ petitioner retired from service w.e.f.

30.04.2007.

7.4 Therefore, as per the law laid down by the Hon'ble Supreme

Court, in White Washer case (cited supra) when an employee is permitted

to retire from service and if anything is paid excessively, either by oversight

or inadvertently, the same cannot be recovered. At this juncture, we would

like to press into service the decision of the Hon'ble Supreme Court, State

of Punjab and others Vs. Rafiq Masih (White Washer) and others,

https://www.mhc.tn.gov.in/judis/ W.A.No.506 of 2021

wherein, at para No.12 it is held as follows:-

“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, summarize 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

https://www.mhc.tn.gov.in/judis/ W.A.No.506 of 2021

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. ''

7.5 Thus, on a perusal of the above judgment, it is clear that no

recovery proceedings can be initiated against an employee, after the

employee's retirement or within one year of the date of his retirement on

superannuation. Therefore, we are of the view that, it would be justifiable

for us to treat the impugned order, insofar as recovery is concerned, on

account of wrongful payment made to the writ petitioner, as iniquitous and

arbitrary, as the recovery is sought to be made nearly 1 ½ years later after

the writ petitioner's retirement. Hence, we find no force in the submissions

made by the learned counsel for the appellants that they are entitled to

recover 5% p.p paid to the writ petitioner during the period from 01.06.1998

to 31.05.2002. Since the writ petitioner worked in the capacity as Head

Constable till 31.05.2002, he is entitled to 5% p.p. The case of the