Madras High Court
Anandasamy vs Union Of India on 28 January, 2022
W.P.(MD)No.5463 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.01.2022
CORAM:
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
W.P.(MD)No.5463 of 2018
and
W.M.P.(MD)No.5389 of 2018
Anandasamy ...Petitioner
/Vs./
1.Union of India,
New Delhi,
By its Principal Secretary,
Human Resources Department,
New Delhi.
2.The National Institute of Technology,
Tiruchirappalli,
By its Director,
National Institute of Technology,
Trichy – 15.
3.The Registrar,
National Institute of Technology,
Trichy – 15. ...Respondents
PRAYER:- Writ Petition - filed under Article 226 of the Constitution of
India, praying for the issuance of a Writ of Certiorarified Mandamus
calling for the records of the 3rd respondent proceedings
1/8
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W.P.(MD)No.5463 of 2018
G1/Pension/2016-2017 dated 24.01.2017, and quash the same as illegal
and directing the respondents to refund the already amount recovered to
the petitioner.
For Petitioner : Mr.Muthusamundeeswaran
for Mr.S.Muthukrishnan
For R1 : Mr.G.Rajaraman
Central Government Standing Counsel
For R2 & R3 : Ms.J.Maria Roseline
ORDER
Heard Mr.Muthusamundeeswaran, learned counsel for the
petitioner, Mr.G.Rajaraman, learned counsel for R1 being Union of India
and Ms.J.Maria Roseline, learned counsel for the National Institute of
Technology (NIT)/R2 & R3.
2.The petitioner was employed in NIT and retired as Mechanic
A-Special Grade on 31.12.2001. He had been in receipt of pension
regularly. While so and out of the blue, he received impugned
proceedings dated 24.01.2017 proposing to recover certain amounts from
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W.P.(MD)No.5463 of 2018
him on the basis that 5% of personal pay that had been sanctioned to him
as early as in 1999 had been erroneously granted and the pension fixed
and granted on the basis of this erroneous sanction is to be refixed and
the excess paid, recovered.
3.The petitioner submitted his explanation both on the aspects
of substantial delay in the proceedings as well as on the merits of the
matter. He pointed out that he was infact entitled to the personal pay and
though there was an objection by audit even at that juncture, the College
authorities being of the categoric view that the employees were entitled
to it, has taken up the matter by the Board of Governors in 2005 itself
and had settled the issue in favour of the employees.
4.The excess payments made to the staff members had been
adjusted by NIT. The petitioner had drawn attention to the minutes of the
meetings of the Board of Governors to buttress his case. He also cited
the Central Civil Services (Pension) Rules, 1972, (in short 'Rules') that
are specific in regard to non recovery of payment after a long elapse of
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W.P.(MD)No.5463 of 2018
time, specifically Rule 73 (3) of the Rules, which provides for the right
of dues where a government servant has superannuated. Thus, according
to the petitioner, there could be no recovery initiated in cases pursuant to
superannuation of the employee concerned.
5.Per contra, respondents rely upon a Judgment of the Hon'ble
Supreme Court in the case of High Court of Punjab and Haryana vs.
Jagdev Singh (AIR 2016 SC 3523). In this judgment, the Supreme Court
distinguishes the ratio of its earlier judgment in the case of State of
Punjab & Ors etc. vs. Rafiq Masih (White Washer) (AIR 2015 SC 696),
wherein a set of guidelines had been issued in regard to the recovery from
various categories of employees.
6.One of the categories enumerated is employees who have
retired or those who were due to retire within one year from the order of
recovery. In such cases, the Court had categorically stated that no
recovery shall be undertaken, as it would result in significant hardship
and prejudice.
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W.P.(MD)No.5463 of 2018
7.In the case of Jagdev Singh (supra), the Court noticed that
the exercise of refixation of pay had been undertaken with the officers
specifically furnishing an undertaking, while opting for the revised pay
scale, that any payment that was made in excess would be refunded by
him.
8.Such a situation postulates three events. Firstly, that there
was a refixation of pay, secondly, such refixation was simultaneous with
the grant of an option to the employee and thirdly that an undertaking
was furnished by the employee to refund the amount received by him, if
it was found to be excess. None of these events have been transpired in
the present case.
9.In fact, the question of an option does not arise as the grant
of personal pay has been thrust upon, the eligible employees, in the
sense, that the petitioner was never asked as to whether he wished to
avail such benefit. That apart, no undertaking has admittedly been taken
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W.P.(MD)No.5463 of 2018
from him as when a specific query was put to the learned counsel for NIT
in this regard, she would fairly confirm this position.
10.Thus, the exceptions as noticed in the case of Jagdev Singh
(supra) are not applicable in the present case and the petitioner is fully
entitled to the benefit of the guidelines set and directions issued White
Washer's case.
11.In the present case, the refixation is consequent upon a
review of the pension case of the petitioner in 2016, 15 years after the
retirement of the petitioner on 31.12.2001. The order of refixation is
dated 05.08.2016 and the refixation has itself, been effected unilaterally
and without any prior notice having been issued to the petitioner.
12.The impugned order is quashed. Any recovery already
effected pursuant to the impugned order shall be reversed forthwith and
the amount recovered shall be paid back to the petitioner within two
weeks from today.
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W.P.(MD)No.5463 of 2018
13.It is inconceivable that the petitioner, aged 75 years at the
time of filing of this writ petition, should be visited with an order of
refixation of pension a decade and a half after his superannuation. If at
all there is an error in the computation of pension, it is incumbent upon
the employee/audit department to detect the same and refix the benefits
in a timely fashion.
14.For the above reasons, I am of the view that the refixation
of pay was itself erroneous and grossly belated. This writ petition is
allowed. No costs. Consequently, connected Miscellaneous Petition is
closed.
28.01.2022
Internet: Yes
Index :Yes/No
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W.P.(MD)No.5463 of 2018
DR.ANITA SUMANTH, J.
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.
Order made in
W.P.(MD)No.5463 of 2018
Dated:
28.01.2022
https://www.mhc.tn.gov.in/judis
