Madras High Court
G.Nallendran vs Accountant General (A&E) Tamilnadu on 2 January, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P.No.34873 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.01.2024
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.No.34873 of 2023
G.Nallendran ... Petitioner
Vs.
1.Accountant General (A&E) Tamilnadu,
361, Anna Salai, Chennai 600 018
2.Principal,
Arignar Anna Government Arts College,
Namakkal Pin-637 002 ... Respondents
PRAYER: Writ petition is filed under Article 226 of the Constitution of India
to issue a writ of mandamus directing the first respondent to refund the sum of
Rs.2,72,089/- recovered from petitioner's gratuity amount vide proceedings
Na.Ka.No.1324/E/2019 dated 16.07.2019.
For Petitioner : Mr.R.Subramanian
For Respondents
For R1 : Mrs.Hema Murali Krishnan,
Standing Counsel
ORDER
This writ petition has been filed for direction to the first
respondent to refund the recovered amount from the petitioner's gratuity by the
proceedings dated 16.07.2019.
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2. The petitioner retired as Lab Assistant from Aringnar Anna
Government Arts College, Namakkal. At the time of his retirement, his pension
was fixed at Rs.29,300/- and gratuity for a sum of Rs.9,58,110/-. The pension
was fixed as per his basic salary and as per GO.Ms.No.63. Thereafter, the
petitioner was also sanctioned revised salary as per GO.Ms.No.303. At the
time of his retirement, when the pension proposal was forwarded to the first
respondent, a query was raised stating that as per GO.Ms.No.63, his revised
pension should be 9300+4200 i.e. 13,500 and not Rs.14,370. The additional
fitment table is not applicable and the entries made in the service register of
the petitioner have to be reviewed and revised entries from 01.01.2006 to the
date of retirement have to be made. Further stated that the pay as on
31.12.2015 should be 15090+4200 GP and revised pay as per GO.Ms.No.303
should be Rs.50,500 w.e.f. 01.01.2016. Therefore, by the proceedings dated
16.07.2019, the petitioner was informed that as per proceedings of the first
respondent dated 25.04.2019, the excess amount of Rs.2,72,089/- had been
paid and it should be recovered from the gratuity amount.
3. In similar matter, this Court already passed order in
WP(MD).No.873 of 2019 thereby upheld the contention of the authorities that
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the additional fitment table is not applicable to Lab Assistants who have got
promotion. Further held that there should not be any recovery from the
employees. Therefore, the petitioner made representation to refund the
deducted amount from his gratuity. Further, the Hon'ble Supreme Court of
India also held in the case of State of Punjab and others Vs. Raffiq Masiq
reported in (2014) 8 SCC 883 that there should not be any recovery from
Group C and D employees after retirement unless any due to any
misrepresentation they had obtained higher pay fixation. Following the said
judgment, the Government of Tamilnadu also passed order in GO.Ms.No.286
dated 28.08.2018 thereby issued guidelines in the matter of recovery from the
retired employees. In the said judgment, it is stated that any amount paid /
received without the authority of law can always be recovered barring few
exceptions of extreme hardships but not as a matter of right. In view of the
above judgment, this Court held in WP(MD).No.873 of 2019 dated 18.12.2009
as follows:
10.The aforesaid observations of the Hon'ble Supreme
Court is self explanatory. While holding that the excess amount
without the authority of the law can be recovered, the Hon'ble
Apex Court had saved a few exceptions of extreme hardships,
though not as a matter of right. Some of the instances pointed
out in Syed Abdul Qadir's case and B.J.Akkara's case was also
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referred to therein. Pursuant to the decision holding that the
reference in White Washer's case (Larger Bench), the
subsequent decision in the White Washer case reported in
(2015) 4 SCC 334 came to be pronounced. In the said decision,
the reference made in Chandi Prasad Uniyal and others (supra)
to Syed Abdul Qadir case and B.J.Akkara case was also
considered. On consideration of such instances, the Hon'ble
Apex Court had postulated some of the instances, where the
recovery could be held as impermissible in law. In view of the
observations made in Chandi Prasad Uniyal and others (supra)
that a few exceptions of extreme hardships could be excluded
from the recovery proceedings and the subsequent decision in
White Waher's case reported in (2015) 4 SCC 334, wherein the
said situations were narrowed down and postulated, this Court
is of the view that the instances mentioned therein could be
adopted as a guideline. If so, the recovery made from the
petitioner, who had reached his age of superannuation, cannot
be sustained in view of Clause 18(ii) which states that recovery
from the retired employees or the employees, who are due to
retire within a period of one year, is impermissible in law.
11.The learned counsel for the second respondent also
submitted that the contemplation to recover the amount was
made even prior to the petitioner's retirement on 01.03.2018
itself. If the guideline stipulated by the Hon'ble Apex Court in
18 (ii) referred above is adopted, it can be said that such a
proposal from the second respondent to the first respondent is
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also within a period of one year prior to the petitioner's date of
superannuation which is again in impermissible.
4. In view of the above discussions, the first respondent recovered
the alleged excess amount and it is impermissible. Therefore, the first
respondent is directed to refund the said amount of Rs.2,72,089/- recovered
from petitioner's gratuity amount vide proceedings Na.Ka.No.1324/E/2019
dated 16.07.2019 within a period of eight weeks from the date of receipt of
copy of this order.
5. With the above direction, this writ petition is disposed of. There
shall be no order as to costs.
02.01.2024
Index :Yes/No (½)
Internet : Yes/No
Speaking order/non-speaking order
lok
https://www.mhc.tn.gov.in/judis
G.K.ILANTHIRAIYAN, J.
lok
To
1.Accountant General (A&E) Tamilnadu,
361, Anna Salai, Chennai 600 018
2.Principal,
Arignar Anna Government Arts College,
Namakkal Pin-637 002
3.The Government Advocate
High Court of Madras
02.01.2024
https://www.mhc.tn.gov.in/judis
