Madras High Court
C.Ramakrishnan vs The Director Of Local Fund Audit on 6 September, 2021
W.P. No.3706 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.09.2021
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P. No. 3706 of 2009
and
MP.No.2 of 2009
C.Ramakrishnan ...Petitioner
Vs.
1.The Director of Local Fund Audit
Kuralagom, IV Floor,
Chennai 600108.
2.The Municipal Commissioner
Namakkal Municipality, Namakkal.
3.The Municipal Commissioner,
Sathyamangalam Municipality,
Sathyamagalam,
Erode District. ...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to
issue a Writ of certiorarified mandamus calling for the records relating to the order
passed by the 2nd Respondent in Na.Ka.No.5990/2007/m3 dated 17.09.2008 and
order passed by the 1st respondent in ep/K/vz; 11131/MPV/2/08, dated 18.11.2008
relating to the reduction of Pensionary benefits of the petitioner from gratuity by
reducing the gratuity of Rs.1,09,026 passed in pursuance of the order of the 2nd
Respondent in Na.Ka.No.e/x/r/(2)/11191/2008 dated 04.07.2008 and in pursuance
of the order of 3rd rspondent in e/f/vz;/3354/2007/C1 dated 05.02.2008 and quash
the same consequentially direct the respondents to refund the attached amount
1
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W.P. No.3706 of 2009
gratuity and re-fix the pension on last drawn pay at R.8300 + 4150/5900-200-7900/-
with 18% interest from the date of retirement.
For Petitioner : Ms.Kavya Silambanan
for M/s.Silambanan Associates
For Respondents : Mr.S.John J.Raja Singh (for R1 and R2)
*********
ORDER
The petitioner is a retired pensioner and has hung up his boots as Manager,
Namakkal Municipality on 29.02.2008. While this is so, and while the petitioner was
settling into retirement, the petitioner received an order of recovery on 04.07.2008
re-fixing scale of pay from the year 1984 till date of retirement, in the basic scale of
Rs.8100 + 450- 5900-200-9900/-. A sum of Rs.47,174/- as excess payment of salary,
a sum of Rs.1130/- towards surrender of leave and a sum of Rs.40,722/- towards the
arrears of time barred debts was directed to be recovered. In all, a sum of
Rs.1,09,026/- was ordered to be recovered out of the gratuity after retirement
benefits payable to the petitioner. It is the aforesaid order that has come to be
challenged before this Court.
2. I need only refer to a judgment of the Supreme Court in the case of State of
Punjab and Others Vs. Rafiq Masih (White Washer) etc. (C.A.No.11527 of 2014)
dated 18.12.2014, wherein the Supreme Court has laid down guidelines for
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W.P. No.3706 of 2009
recoveries to be effected from employees. At paragraph 12, the Supreme Court has
categorically stated that no recovery should be initiated as against employees who
have retired/superannuated in service, stating specifically at sub-paragraph (iii) of
paragraph 12, that recovery from employees, for excess payment stated to have been
made for a period in excess of five years before the order of recovery is issued, must
not be effected. Paragraph 12 is extracted below:
12. 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.
3. The prayer in this writ petition would be directly covered by the aforesaid
judgment. That apart, in sub-paragraph (v) of paragraph 12, the Bench has left it
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W.P. No.3706 of 2009
open to the Court to determine whether the circumstances in which the recovery is
being made in the case on hand was iniquitous or harsh.
4. In the present case, the fixation of pay has been disturbed from 1979
onwards and this has been communicated to the petitioner after his retirement in
2008. I am of the view that the circumstance in the present case are certainly
iniquitous, to say the lease. This writ petition is allowed and the impugned order is
set aside. Connected miscellaneous petition is closed. No costs.
06.09.2021
ska
Index: Yes
Speaking order
To
1.The Director of Local Fund Audit
Kuralagom, IV Floor
Chennai 600108
2.The Municipal Commissioner
Namakkal Municipality, Namakkal
3.The Municipal Commissioner
Sathyamangalam Municipality
Sathyamagalam
Erode District
https://www.mhc.tn.gov.in/judis/
W.P. No.3706 of 2009
Dr.ANITA SUMANTH,J.
Ska
W.P. No. 3706 of 2009and
MP.No.2 of 2009
06.09.2021
https://www.mhc.tn.gov.in/judis/
