Madras High Court

Annammal vs The Assistant Director on 9 January, 2023

                                                                       W.P.(MD)No.28079 of 2022



                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED : 09.01.2023

                                                       CORAM

                                  THE HONOURABLE MR.JUSTICE M.DHANDAPANI

                                            W.P.(MD)No.28079 of 2022
                                                        and
                                       W.M.P(MD) Nos.22163 & 22164 of 2022


                     Annammal                                                  : Petitioner


                                                        Vs.


                     1.The Assistant Director
                       Fisheries and Fishermen Welfare Department,
                       Kanyakumari - 629 702.

                     2.The Principal Accountant General (A and E),
                        No.361, Anna Salai,
                       Chennai - 600 018.

                     3.The District Treasury Officer
                       Nagercoil,
                       Kanyakumari District.                                 : Respondents




                     _________
                     Page 1 of 10


https://www.mhc.tn.gov.in/judis
                                                                             W.P.(MD)No.28079 of 2022

                     PRAYER : Petition filed under Article 226 of the Constitution of India

                     praying for issuance of Writ of Certiorarified Mandamus to call for the

                     records pertaining to the impugned proceedings issued by the 1st respondent

                     in Na.Ka.No.632/E/2020 dated 11.11.2022 and quash the same on the

                     ground that the same is arbitrary, illegal and without any legal basis and

                     consequently directing the respondents to disburse the entire monetary

                     benefits to the petitioner.


                                  For Petitioner    : Mr.P.Krishnasamy

                                  For Respondents   : Mrs.K.Christy Theboral, - for R1 & R3
                                                     Additional Government Pleader
                                                     Mr.P.Gunasekaran - for R2
                                                     Standing Counsel

                                                      ORDER

This writ petition has been filed to quash the impugned

proceedings issued by the 1st respondent in Na.Ka.No.632/E/2020 dated

11.11.2022 and consequently to direct the respondents to disburse the entire

monetary benefits to the petitioner.

_________

https://www.mhc.tn.gov.in/judis W.P.(MD)No.28079 of 2022

2. The learned counsel for the petitioner submitted that the

petitioner is a widow and after the death of her husband on 14.04.1995, she

was appointed as a Sweeper on 06.12.2000 under Compassionate

appointment in Fisheries and Fishermen Welfare Department. The

petitioner belongs to Scheduled Caste community. Further, the petitioner

retired from service on 31.07.2022, after completion of 21 years 7months

service, without any allegations. The petitioner has received the last drawn

salary at Rs.33,100/- and that the scale of pay is Rs.4800-10000 + GP 1300

(Level 1). However, the first respondent vide proceedings, dated

11.11.2022 decided to recover the amount to the tune of Rs.5,25,424/- on

the ground that the pay was wrongly fixed by the employer by adding the

grade pay twice to the petitioner, thereby based on the audit objections, the

recovery order was passed. Challenging the same, the present writ petition

is filed.

3. The learned counsel for the petitioner further submitted that

admittedly the petitioner is a last grade servant worked as a Sweeper after

_________

https://www.mhc.tn.gov.in/judis W.P.(MD)No.28079 of 2022

the demise of her husband in the respondents department. The petitioner

did not made any misrepresentation for acquiring the higher pay, however,

the petitioner is an illiterate and the employer on their own, paid the amount

as per the Government Orders and thereby, the petitioner received the said

amount from the employer. At the time of retirement, they sought to be

recovered the amount, is not sustainable one and it is in clear violation of

principles of natural justice and further in respect of last grade servant

already Apex Court held that if there is any misrepresentation on the part of

the employee, the amount cannot be recovered in respect of last grade

servant. Accordingly, he prayed for allowing the writ petition.

4. To support the contention of the petitioner, he referred to the

decision of the Hon’ble Supreme Court rendered in the case of State of

Punjab and others Vs. Rafik Masih (White Washer) and others reported

in 2015(4) SCC-334.

5. By referring to the judgment of the Hon’ble Supreme Court of

India, the petitioner submitted that no recovery proceedings can be initiated

_________

https://www.mhc.tn.gov.in/judis W.P.(MD)No.28079 of 2022

even for any excess payment paid to the petitioner by the respondents.

Hence, the Recovery proceedings, initiated by the respondents are liable to

be quashed.

6. The learned Additional Government Pleader appearing for the

respondents 1 and 3 submitted that the service register was sent to the

second respondent with the proposal of retirement benefits, dated

19.10.2022 and it was returned to the office on 17.11.2022. The draft

recovery calculation details were communicated to the petitioner by the

second respondent on 09.09.2022 which is not objected to by the petitioner.

Thereafter, the second respondent reiterated the same calculation to the

respondent as well as to the petitioner. Thereafter, the third respondent has

also communicated the recoverable excess payment vide letter, dated

19.12.2022. Moreover, the third respondent deducted the excess payment of

Rs.3,87,060/- and remitted the balance payment of Rs.60,936/- and GPF

Amount of Rs.55,747/- in the bank account of the petitioner. Hence, the

petitioner consciously accepted for the recovery of arrears and received the

balance amount through her account. The second respondent passed the

_________

https://www.mhc.tn.gov.in/judis W.P.(MD)No.28079 of 2022

final order on 09.11.2022 and it was communicated to the petitioner also

which is remains unchallenged and become final. Hence, she prayed for

dismissal of the writ petition.

7. Heard the learned counsel on either side and perused the

materials available on record.

8. The facts in the present case are not in dispute. Admittedly the

petitioner retired from service and at the time of retirement the present

recovery order is passed, without issuing any notice. It is an undisputed

fact that the petitioner is a last Grade servant and the issue arises in the

present case is squarely covered by the decision of the Hon'ble Apex Court,

wherein, the Apex Court held that in the absence of any misrepresentation,

if any benefits granted to the clause 3 and 4 employees, cannot be sought to

be recovered subsequently, at a later point of time.

9. In the decision of the Hon’ble Supreme Court rendered in the

case of State of Punjab and others Vs. Rafik Masih (White Washer) and

_________

https://www.mhc.tn.gov.in/judis W.P.(MD)No.28079 of 2022

others reported in 2015(4) SCC-334 and referred paragraph No.12,

wherein, it was held as follows :

"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.

_________

https://www.mhc.tn.gov.in/judis W.P.(MD)No.28079 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."

In view of the settled proposition of law laid down by the Hon’ble Apex

Court, the Recovery proceedings, initiated by the respondents is not

sustainable, and accordingly, the present impugned order is quashed.

10. Accordingly, this writ petition is allowed. The present

impugned order is set aside. The respondents are directed to disburse the

_________

https://www.mhc.tn.gov.in/judis W.P.(MD)No.28079 of 2022

terminal benefits to the petitioner within a period of four weeks from the

date of receipt of a copy of this order. No costs. Consequently, connected

miscellaneous petitions are closed.

09.01.2023 Index : Yes / No Internet : Yes / No NCC : Yes / No RM

1.The Assistant Director Fisheries and Fishermen Welfare Department, Kanyakumari - 629 702.