Madras High Court

A.Subramani vs The Vice Chancellor on 30 January, 2025

Author: Battu Devanand

Bench: Battu Devanand

W.P.No.21338 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 30.01.2025

CORAM

THE HON'BLE MR. JUSTICE BATTU DEVANAND

W.P.No.21338 of 2019
and WMP.No.20559 of 2019

A.Subramani ... Petitioner

Vs.

1. The Vice Chancellor,
Periyar University,
Salem 636 011.
2. The Registrar,
Periyar University,
Salem 636 011.
3. The Finance Officer,
Periyar University,
Salem 636 011. ... Respondents

PRAYER: Writ Petition filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorarified Mandamus calling for the records of the
second respondent relating to Pro.PU/R6/008990/2018-3, dated 31.05.2018

1/11

https://www.mhc.tn.gov.in/judis
W.P.No.21338 of 2019

to quash the same and to issue consequential directions to the respondents
to refund to the petitioner Rs.4,14,866/- with interest and to restore his pay
in the posts of Junior Assistant and Assistant and fix his retirement and
pensionary benefits including cumulative pension on that basis and disburse
the same with interest.

For Petitioner : Mr. M.Ravi
For Respondents : Ms.M.Kaviya
for Mr.P.Godson Swaminath

ORDER

This petition has been filed to quash the records of the second

respondent relating to Pro.PU/R6/008990/2018-3, dated 31.05.2018 and

issue consequential directions to the respondents to refund to the petitioner

a sum of Rs.4,14,866/- with interest and to restore his pay in the posts of

Junior Assistant and Assistant and fix his retirement and pensionary

benefits including cumulative pension on that basis and disburse the same

with interest.

2. The facts of the case are as hereunder:

i) The petitioner was initially appointed as peon in the Madras

University and he joined duty on 23.01.1995 and his service was confirmed

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from 09.09.1997. Consequent on the establishment of Periyar University, he

was absorbed as employee of Periyar University with effect from

01.09.1998 as per Section 58(1) of the Periyar University Act, 1997 and he

was granted selection grade in the said post with effect from 23.01.2005.

Subsequently, he was appointed as Junior Assistant on 01.08.2006 and

thereafter, promoted as Assistant with effect from 27.01.2010 and he was

permitted to retire from service on 31.05.2018 A.N. on attaining the age of

superannuation vide Pro.No.PU/R6/008990/2018-2, dated 31.05.2018. On

the same date, the second respondent issued an order dated 31.05.2018

sanctioning retiral and pensionary benefits amount of Rs.7,29,028/- under

various heads. However, in the said order, a sum of Rs.4,14,866/- has been

deducted terming it as excess pay from 18.12.2008 to 31.05.2018. The

balance amount of Rs.3,14,162/- has been ordered to be disbursed to the

petitioner.

ii) In the said order, it has been stated that the Local Fund Audit

Department raised objections with regard to the promotion of the petitioner

as Junior Assistant on the ground that the petitioner was promoted without

qualifying in the departmental test. Accordingly, as per the direction of the

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Local Fund Audit Department, wherein it is suggested for recovery of

excess pay made to the petitioner for the promotion to the post of Junior

Assistant, the second respondent has withhold an amount of Rs.4,14,866/-

out of the total amount payable to the petitioner as per the sanction order

dated 31.05.2018. Aggrieved against the order passed by the respondents,

contemplating to withhold or deduct the amount of Rs.4,14,866/- from the

total payment to be made to the petitioner, the petitioner was constrained to

file this Writ Petition.

3. On behalf of the respondents 1 and 2, a counter affidavit has been

filed. In the counter affidavit, it is averred that during the period of

petitioner's service, without having requisite qualifications and passing the

Departmental tests, he was promoted to the post of Junior Assistant and

subsequently as Assistant. After retirement of the petitioner, when proposals

were sent for pensionary benefits, the Audit Department raised objections

with regard to the promotion granted to the petitioner to the post of Junior

Assistant without passing departmental tests and accordingly, suggested the

respondent University to recover the excess amount paid to him after

promotion as Junior Assistant. Therefore, the University took the decision

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to recover the amount of Rs.4,14,866/- from the retirement benefits of the

petitioner vide order dated 31.05.2018.

4. The learned counsel for the petitioner would submit that the

petitioner was serving as Group C employee in the respondent University

and he retired from service on 31.05.2018 and as such the alleged recovery

of excess payment related to a period of 5 years from 18.12.2008 to

31.05.2018 is contrary to the law laid down by the Apex Court in the State

of Punjab and others vs. Rafiq Masih (White Washer case). Accordingly,

he sought to set aside the impugned proceedings by allowing the Writ

Petition.

5. On the other hand, the learned Standing Counsel appearing for the

respondent University 1 and 2 contends that the University's decision to

recover the said amount from his retirement benefits was necessitated by

continuous audit objection and Government decision. She further contends

that the petitioner does not fall within the category of the case enumerated

by the Hon'ble Apex Court in its judgment in White Washer Case.

Accordingly, the learned Standing Counsel sought to dismiss the Writ

Petition.

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6. Having considered the submissions of the respective counsels and

on careful perusal of the materials available on record, particularly, from the

averments in the counter filed by the respondents, it is clear that the

respondent University is responsible for promoting the petitioner to the post

of Junior Assistant and further promotion as Assistant. There is no role of

the petitioner in those promotions. It is the duty of the respondents to be

vigilant while granting promotion to the petitioner. However, without

doing so, after 20 years of granting promotion to the petitioner as Junior

Assistant, now contending that he was promoted to the post without passing

Departmental tests is untenable. If the petitioner is at fault on getting

promotion or for payment of any excess amount to him, it can be recovered

from him. But admittedly, in the present case, there is no fault on the part of

the petitioner for those promotions and for the payment. Even after

retirement of the petitioner, at the instance of the Audit Department

objections only, the respondent University is taking steps to take the amount

of Rs.4,14,866/- from the retirement benefits to be payable to the petitioner

vide sanction order dated 31.05.2018. The respondent University without

taking any steps against the petitioner in the entire service and after

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retirement raising all these issues is unreasonable and irrational. In fact, the

process of recovery or withholding of the amounts from the employees or

retired employees like the petitioner by the employers is no longer

res integra, the Hon'ble Apex Court in the State of Punjab and others vs.

Rafiq Masih (White Washer case) reported in AIR 2015 Supreme Court

696 while considering an identical issue, held that 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. The relevant portion of the

judgment is extracted hereunder:

“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.

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(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.”

7. In the said decision at paragraph 12(i), the Apex Court held that

recovery from employees belonging to Class-III and Class-IV service

(Group C and Group D service) is impermissible in law. Admittedly, in the

present case, the petitioner belongs to Group C category.

8. The Supreme Court also held that recovery from retired employees,

who are due to retire within one year of the order of recovery is

impermissible. Admittedly, in the present case, only after retirement of the

petitioner, the respondents contemplate to recover the amount of

Rs.4,14,866/-.

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9. The Apex Court further held that recovery from employees, when

the excess payment has been made for a period in excess of 5 years, before

the order of recovery is issued, is impermissible. In the present case, the

petitioner was promoted as Junior Assistant with effect from 01.08.2006

and from that date he has been paid salary as per the scale of Junior

Assistant. The present impugned order was issued in the year 2018, so the

recovery has been contemplated by the respondents nearly 20 years from the

date of promotion of the petitioner.

10. As seen from the above, it came to understand that the order of

the respondents contemplate to recover the amount of Rs.4,14,866/- from

the retirement benefits of the petitioner vide order dated 31.05.2018 is

illegal, unjust, irrational and contrary to the judgment of the Apex Court

stated supra. Hence, the order impugned in this Writ Petition is liable to be

quashed. Accordingly, this Writ Petition is allowed with the following

directions:

i) The order impugned in this Writ Petition in

Pro.PU/R6/008990/2018-3, dated 31.05.2018 is hereby quashed.

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ii) The respondents are directed to release the amount of

Rs.4,14,866/- forthwith to the petitioner.

iii) It is needless to say that the remaining amount of Rs.3,14,162/-,

which is payable to the petitioner, if not yet disbursed, it shall be disbursed

forthwith.

No costs. Consequently, connected miscellaneous petition is closed.





                                                                                         30.01.2025

                    Speaking/Non-speaking order
                    Index     : Yes/No
                    Internet : Yes/No
                    pvs
                    To
                    1. The Vice Chancellor,
                       Periyar University,
                       Salem 636 011.
                    2. The Registrar,
                       Periyar University,
                       Salem 636 011.
                    3. The Finance Officer,
                       Periyar University,
                       Salem 636 011.






https://www.mhc.tn.gov.in/judis





                                  BATTU DEVANAND.J.,
                                                pvs









                                               30.01.2025






https://www.mhc.tn.gov.in/judis