Madras High Court
The Director Of Adi Dravidar Welfare vs K.Arumugam on 13 March, 2025
Bench: J.Nisha Banu, S.Srimathy
W.A(MD)No.400 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.03.2025
CORAM:
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD)No.400 of 2025
and
C.M.P(MD)No.3155 of 2025
1.The Director of Adi Dravidar Welfare,
Ezhilagam, Chepauk,
Chennai – 600 005.
2.The Pay and Accounts Officer,
Egmore East,
Chennai – 600 008.
3.The Sub Treasury Officer,
Manamadurai Sub Treasury,
Manamadurai,
Sivagangai District. ... Appellants/Respondents
vs.
K.Arumugam ... Respondent/Writ Petitioner
PRAYER : Writ Appeal filed under Clause 15 of the Letters Patent against the
order dated 28.06.2024 made in W.P(MD)No.13856 of 2024 on the file of this
Court.
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W.A(MD)No.400 of 2025
For Appellants : Mr.R.Baskaran
Additional Advocate General
Assisted by
M/s.D.Farjana Ghousia
Special Government Pleader
For Respondent : Mr.S.Visvalingam
JUDGMENT
(Judgment of the Court was delivered by J. NISHA BANU, J.)
The present Writ Appeal is directed against the order passed by the
Writ Court dated 28.06.2024 made in W.P(MD)No.13856 of 2024.
2.The respondent/writ petitioner has filed the Writ Petition
challenging the proceedings of the first respondent dated 30.05.2023, wherein
directed the Pay and Accounts Officer (East) Chennai to deduct the alleged excess
payment of salary paid from 2007 to 2020 for a sum of Rs.12,18,121/- from his
DCRG amount of Rs.15,56,685/- and disburse the remaining amount of DCRG of
Rs.3,38,564/- to the writ petitioner and direct the first respondent to order refund
of the amount of Rs.12,18,121/- recovered after three years of retirement.
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3.The Writ Court, after considering all the materials available on
record, allowed the Writ Petition by setting aside the order of recovery made by
the first respondent dated 30.05.2023 and the earlier recovery made between the
year 2007 and 2015 and directed the appellants to refund the excess payment and
further stated that if for any reason, wrong fixation of pay has got any impact
upon the pension payable to the respondent/writ petitioner and the pension of the
writ petitioner is to be revised, it is obligatory on the part of the respondents to do
the same after putting the writ petitioner on notice and giving an opportunity to
make his submissions/objections and thereafter, revise the same. Challenging the
same, the respondents as appellants have preferred the present Writ Appeal.
4.The learned counsel appearing for the appellants stated that the
Accountant General vide letter dated 17.03.2021 stated that the pay fixed for the
writ petitioner at Rs.19,250-5,700/- in the selection grade of P.G Assistant as on
24.09.2007 is not correct and Rs.16,930-5,700/- is the correct pay and as such,
this may be revised and the correct last pay drawn of the writ petitioner is
Rs.88,700/- and it was wrongly fixed as Rs.99,800/-. Based on the above remarks
of the Accountant General, the pay of the writ petitioner was revised by the first
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respondent vide proceedings dated 17.05.2023. Further, the respondent/writ
petitioner has given an undertaking to the first appellant/first respondent in his
letter dated 27.05.2022 that as mentioned by the Accountant General, vide letter
dated 17.03.2021, to recover the excess amount of pay and other allowances
claim and disbursed to the writ petitioner in his DCRG and also to recover the
excess amount of Rs.1,09,899/- sanctioned for selection grade for his monthly
salary and disbursed the remaining amount. He further submitted that the
impugned order has been issued by the first appellant/first respondent based on
the remarks of the Accountant General, Chennai and also recovered the excess
amount of pay and other allowances claim and disbursed to him from his DCRG
and the excess amount sanctioned for selection grade in the cadre of P.G Assistant
from his monthly salary and prayed for allowing the Writ Appeal.
5.The learned counsel appearing for the respondent/writ petitioner
stated that the recovery has been made after three years of retirement and thus,
recovery was impermissible in law and the writ Court has rightly allowed the Writ
Petition and prayed for dismissing the Writ Appeal.
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6.Heard the learned counsel appearing on either side and perused the
materials placed before this Court.
7.Perusal of the materials available on record would reveal that the
writ petitioner, who was a Headmaster, retired on 29.02.2020. He was sanctioned
with pension, commuted pension and DCRG as per the proceedings of the first
appellant, dated 17.03.2021. While so, the DCRG was not disbursed to the writ
petitioner. Hence, the writ petitioner sent a representation on 13.02.2023. Since
there was no reply, he filed a Writ Petition in WP(MD) No.14052 of 2023 and
vide order dated 15.06.2023, the writ Court directed the respondents therein to
consider the representation and pass orders. Since the said order was not
complied with, the writ petitioner has preferred a contempt petition. Pursuant to
the same, the first appellant/first respondent passed the order dated 30.05.2023,
whereby and whereunder, recovery was made to the tune of Rs.12,18,121/-.
8.It appears from the worksheet of the recovery, the excess payment
has not been calculated from the year 2007 to the date of retirement of the writ
petitioner during February 2020. The reason assigned for deduction is that the
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writ petitioner's grade pay has been wrongly fixed in the year 2007 and hence, it
has to be reduced and the excess payment so far made to the writ petitioner from
2007 to 2020 can be recovered, pursuant to the undertaking given by the writ
petitioner. Obviously the writ petitioner has not suppressed any material facts and
he was not instrumental for getting any excess payment. Even the writ petitioner
has not given with any opportunity to state whether the fixation has been wrong
or right. Unless the writ petitioner is put on notice, he may not be in a position to
state that the fixation has been made wrongly.
9.The recovery ought not to have been made in view of the fact that
the excess payment resulting in the alleged wrong fixation relates back to the year
2007. When the first recovery was started in the year 2015, it was beyond five
years. During which time, the guidelines of the Hon'ble Supreme Court held in
State of Punjab and others etc., vs. Rafiq Masih reported in [2014] 13 S.C.R.
1343 (White washer's) case was in force. The subsequent recovery has been
made without any notice and that are beyond the permissible limit contemplated
under the guidelines in the White washer's case.
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10.For the sake of clarity, the guidelines are reiterated as under:
“(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.
(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.”
11.In fact, the recovery has been made subsequent to the writ
petitioner's retirement by stating that he has already given an undertaking. The
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writ petitioner has not given any undertaking to deduct further Rs.12 lakhs from
his terminal benefits. The so called letter of consent given by an employee at the
verge of retirement or after two or three years to get the terminal benefits at the
earliest, cannot be considered as informed or voluntary consent. Since the
recovery is totally against law and impermissible, the writ Court has rightly set
aside the impugned order passed by the first respondent.
12.In view of the above, we do not find any illegality or irregularity
in the order passed by the Writ Court. Accordingly, this Writ Appeal is dismissed.
There shall be no order as to costs. Consequently, connected Miscellaneous
Petition stands closed.
[J.N.B.,J.] & [S.S.Y.,J.]
13.03.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes
ps
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To
1.The Director of Adi Dravidar Welfare,
Ezhilagam, Chepauk,
Chennai – 600 005.
2.The Pay and Accounts Officer,
Egmore East,
Chennai – 600 008.
3.The Sub Treasury Officer,
Manamadurai Sub Treasury,
Manamadurai,
Sivagangai District.
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J.NISHA BANU, J.
and
S.SRIMATHY, J.
ps
ORDER MADE IN
DATED : 13.03.2025
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