Madras High Court
Kasiammal vs Union Of India on 9 November, 2021
W.P(MD)No.3127 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:09.11.2021
CORAM:
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
W.P.(MD).No.3127 of 2018
and
W.M.P.(MD).No.3281 of 2018
Kasiammal
... Petitioner
vs.
1.Union of India,
New Delhi
by its Principal Secretary,
Human Resources Department,
New Delhi.
2.The National Institute of Technology,
Tiruchirapalli
by its Director,
National Institute of Technology,
Trichy 15.
3.The Registrar,
National Institute of Technology,
Trichy 15.
... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Mandamus, forbearing the
respondents from recovering the amount from the monthly pension of the
petitioner.
1/8
https://www.mhc.tn.gov.in/judis
W.P(MD)No.3127 of 2018
For Petitioner : Mr.S.Muthukrishnan
For R1 & R2 : No appearance
For R3 : Mrs.J.Maria Roseline
ORDER
This writ petition is filed seeking a Mandamus, forbearing the
respondents from recovering any amount from the monthly pension of
the petitioner.
2. The petitioner is the wife of one Muthu, who had been working
in the National Institute of Technology as a Driver. He retired on
30.06.2002, upon superannuation. He was given pension regularly till his
demise on 07.01.2006. The petitioner was sanctioned family pension,
thereafter, which she has been receiving regularly.
3. The petitioner's husband had been sanctioned 5% of personal
pay with effect from 01.07.1999, as per G.O.(Ms.).No.664, Finance (Pay
Cell), Department, dated 24.08.1992, which had been taken into account
in computing the pension. This, according to the respondent, constituted
an error as the 5% personal pay ought to have been excluded in
https://www.mhc.tn.gov.in/judis
W.P(MD)No.3127 of 2018
determining the pension payable. The respondents have thus resorted to
recovery of the pension allegedly paid in excess from the family pension
sanctioned to the petitioner.
4. No counter has been filed in this matter. However, Ms.J.Maria
Roseline, who appears for the Registrar, National Institute of Technology
/ R3 would confirm such recovery. She would however bring to my
notice an order passed on 17.03.2016, as per which, the recovery is being
effected. In light of the fact that the aforesaid order of recovery has not
been challenged, she would argue that the petitioner is not entitled to the
Mandamus, as sought.
5. The recovery sought to be effected under Order dated
17.03.2016, relates to pension that has been sanctioned from 30.06.2002
and recomputes the pension from that date onwards, operating
retrospectively. This is clearly inadmissible and contrary to law as well
as to the judgment of the Hon'ble Supreme Court in the case of State of
Punjab and Ors Vs. Rafiq Masih (White Washer) and others (2015 (4)
SCC 334).
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W.P(MD)No.3127 of 2018
6. The Hon'ble Supreme Court considered in that case, various
situations in which recovery was being effected, holding categorically, at
paragraph 18 thereof that there are certain situations in which recovery
was not permissible and enumerating such situations illustratively. One
of the instances is when the employee concerned has superannuated or
when the recovery is undertaken proximate to superannuation.
7. The relevant paragraph is extracted below:
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
hereinabove, we may, as a ready reference, summarise 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
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W.P(MD)No.3127 of 2018
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 employers right to recover.
8. In the present case, the impugned recovery is sought to be
effected 14 long years after date of superannuation of the concerned
employee from out of the family pension paid to the deceased employee's
wife. I find no justification or warrant for such belated action. The
respondents have missed not one, but two buses in the matter.
9. The deceased husband of the petitioner was given pension at
the time of superannuation on 30.06.2002. Thereafter, he passed away
on 07.01.2006 and the petitioner was sanctioned family pension. Thus
there have been two instances, when the respondents have
committed/perpatrated the alleged error.
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W.P(MD)No.3127 of 2018
10. The petitioner has been continuously receiving the pension till
2016. In my view, the respondents have been wholly lethargic and
negligent in continuing /perpetrating the error that, according to them,
was occasioned in 2002. In the light of the discussion as aforesaid, the
prayer of the petitioner is moulded so as to set aside the recovery ordered
under order dated 17.03.2016, and the Mandamus, as sought for by the
petitioner, is granted. This Writ Petition is allowed. No costs.
Consequently, connected Miscellaneous Petition is closed.
09.11.2021
Index :Yes/No
Internet:Yes/No
akv/sm
Note:
In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate / litigant concerned.
https://www.mhc.tn.gov.in/judis
W.P(MD)No.3127 of 2018
To
1.Union of India,
New Delhi
by its Principal Secretary,
Human Resources Department,
New Delhi.
2.The National Institute of Technology,
Tiruchirapalli
by its Director,
National Institute of Technology,
Trichy 15.
3.The Registrar,
National Institute of Technology,
Trichy 15.
https://www.mhc.tn.gov.in/judis
W.P(MD)No.3127 of 2018
DR.ANITA SUMANTH,J.
akv/sm
ORDER MADE IN
W.P.(MD)No.3127 of 2018
09.11.2021
https://www.mhc.tn.gov.in/judis
