Madras High Court
P.Ayyasamy vs The Joint Registrar Of ... on 25 April, 2022
W.A(MD)No.275 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.04.2022
CORAM:
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE PARESH UPADHYAY
W.A(MD)No.275 of 2022
and
C.M.P(MD)No.2684 of 2022
P.Ayyasamy ... Appellant
Vs.
1.The Joint Registrar of Co-operative Socieites,
Sivagangai,
Sivagangai District.
2.The Deputy Registrar of Co-operative Societies,
Public Distribution System,
Sivagangai,
Sivagangai District. ... Respondents
Appeal filed under Clause 15 of Letters Patent, against the
order of this Court made in W.P(MD)No.20139 of 2016 dated
15.12.2021.
Page 1 of 9
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W.A(MD)No.275 of 2022
For Appellant : Mr.M.Ajmal Khan, Senior Counsel
for M/s.Ajmal Associates
For Respondents : Mr.J.Ashok
Additional Government Pleader
JUDGMENT
(Judgment of the Court was made by the Hon'ble Chief Justice)
By this writ appeal, a challenge is made to the judgment
dated 15.12.2021, whereby, the writ petition preferred by the
petitioner/writ appellant to challenge the order dated 19.05.2016
to seek recovery of amount, was dismissed.
2. The learned counsel appearing for the writ appellant
submits that an order for recovery of a sum of Rs.4,18,762/-
was issued on 19.05.2016. The order aforesaid was passed after
the retirement of the petitioner on 30.06.2008. Giving the facts
of the case, it is stated that on the eve of retirement, the
petitioner/writ appellant was placed under suspension and was
not allowed to retire from service. The petitioner/writ appellant
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W.A(MD)No.275 of 2022
was served with three charge memos on 13.10.2008, 19.05.2009
and 23.02.2011. The charge memo dated 23.02.2011 was
dropped by the proceedings dated 18.03.2015 while other two
charge memos are pending. One charge memo dated
13.10.2008 ended with minor punishment of stoppage of
increment of Rs.750/- for one year and the second charge memo
dated 19.05.2009 ended up with imposition of the punishment of
Rs.1,000/- for one year. As the petitioner was kept under
suspension on 30.06.2008, he was granted subsistence allowance
for the period between 01.07.2008 and 01.04.2016 for a period
of 94 months. The order of suspension was revoked by the order
dated 28.04.2016 and he was allowed to retire. The effective
date of retirement was thus taken by the respondents to be
28.04.2016. The recovery order was subsequently issued on
19.05.2016 to seek recovery of Rs.4,18,762/-. It was alleging
that the payment in excess within the period of suspension
ignoring that the recovery of the amount paid to an employee
retired from service is not permissible in view of the judgment of
the Hon'ble Apex Court in State of Punjab and others vs.
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W.A(MD)No.275 of 2022
Rafiq Masih (White Washer) and others reported in (2015)
4 SCC 334. The learned Single Judge, however, dismissed the
writ petition despite finding that the payment said to be in excess
was not due to misrepresentation or fraud on the part of the
petitioner/writ appellant and otherwise according to the writ
appellant, it was not even excess payment so as to be recovered.
In any case, the petitioner/writ appellant is to be seen by the
judgment of the Apex Court in Rafiq Masih's case (supra). The
prayer is to set aside the judgment so also the impugned order
dated 19.05.2016 and allow the writ appeal.
3. The writ appeal has been contested by the learned
Special Government Pleader who submits that the amount of
subsistence allowance was paid to the petitioner/writ appellant in
excess and therefore, realising the aforesaid immediately after
the date of retirement, an order for recovery of the excess
amount was issued on 19.05.2016 and taking into consideration
that excess payment was erroneously made to the petitioner/writ
appellant, the learned Single Judge refused to call interference
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W.A(MD)No.275 of 2022
therein. Thus, his prayer is to dismiss the writ appeal while
maintaining the order passed by the learned Single Judge.
4. We have considered the rival submissions of the
parties and perused the records.
5. Facts pertaining to the case have been given in brief,
thus, need not be reiterated as otherwise challenge to the
judgment of the learned Single Judge shows that the order dated
19.05.2016 to seek recovery of a sum of Rs.4,18,762/- is to be
seen merely reference to the judgment of the Apex Court in
Rafiq Masih's case (supra). It is not in dispute that the order
of recovery dated 19.05.2016 was issued after retirement of the
petitioner who was, in fact, due for retirement on 30.06.2008,
but was served with the order of suspension on the day of
retirement itself and thus not allowed to retire on 30.06.2008.
The order of suspension was, however, revoked on 28.04.2016
and the petitioner/writ appellant was allowed to retire on the said
date. It is after the retirement of the petitioner/writ appellant,
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W.A(MD)No.275 of 2022
the order of recovery of a sum of Rs.4,18,762/- towards the
subsistence allowance was issued on 19.05.2016. In view of the
undisputed facts in regard to date of retirement and issuance of
the order of recovery subsequent to it, the matter is squarely
covered by the judgment of the Apex Court in Rafiq Masih's
case (supra). Paragraph 18 of the said judgment is quoted
herein for ready reference:-
''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 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.
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W.A(MD)No.275 of 2022
(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.''
6. As per the ratio propounded by the Apex Court in the
case supra, recovery of the excess amount is not permissible
from a retired employee and therefore, the order of recovery
should not have been allowed to stand. However, the writ
petition was dismissed by the learned Single Judge, but finding
that the issue is covered by the judgment of the Apex Court in
Rafiq Masih's case, we set aside the judgment of the learned
Single Judge so also the impugned order dated 19.05.2016. The
recovery of the amount is not made permissible from a retired
employee.
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W.A(MD)No.275 of 2022
7. Accordingly, the Writ Appeal is allowed with the
aforesaid. No costs. Consequently, connected miscelleneous
petition is closed.
(M.N.B., CJ.) (P.U., J.)
25.04.2022
Index :Yes/No
bala/ssl
To
1.The Joint Registrar of Co-operative Socieites,
Sivagangai,
Sivagangai District.
2.The Deputy Registrar of Co-operative Societies,
Public Distribution System,
Sivagangai,
Sivagangai District.
https://www.mhc.tn.gov.in/judis
W.A(MD)No.275 of 2022
M.N.BHANDARI, CJ.
and
PARESH UPADHYAY, J.
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W.A(MD)No.275 of 2022
25.04.2022
https://www.mhc.tn.gov.in/judis
