Madras High Court

K.Jawahar vs The Agricultural Production ... on 24 March, 2025

Author: Battu Devanand

Bench: Battu Devanand

                                                                                     W.P.(MD)No.11819 of 2024

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED : 24.03.2025

                                                       CORAM

                              THE HONOURABLE MR.JUSTICE BATTU DEVANAND

                                          W.P.(MD)No.11819 of 2024

                K.Jawahar                                                             ... Petitioner


                                                            Vs.

                1. The Agricultural Production Commissioner and
                Secretary to Government,
                Agriculture Department,
                Secretariate,
                Chennai-600 009.

                2. The Director of Agriculture,
                Chepauk,
                Chennai-600 005.

                3. The Joint Director of Agriculture,
                Master Complex, Near Collectoate,
                Theni-625 531.                                                        ... Respondents

                PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
                issuance of Writ of Certiorarified Mandamus, calling for the records of the third
                respondent i.e., the Joint Director of Agriculture, Theni in his impugned
                proceedings No.A1/4274/2015 dated 12.10.2018 and quash the same and
                consequently direct the first respondent i.e., the Agricultural Production
                Commissioner and Secretary to Government, Agricultural Department, Chennai
                to refund the amount of Rs.3,81,742/- recovered from the petitioner, as per the

                1/10




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                                                                                             W.P.(MD)No.11819 of 2024

                provisions contained in White Washer's case reported in (2015) 4 SCC 334 and
                followed in number of cases by the Hon'ble Writ Court and Hon'ble Division
                Bench.

                                  For Petitioner                             : Mr.S.Viswalingam

                                  For Respondents                            : Mr.D.Sachikumar
                                                                               Additional Government Pleader


                                                          ORDER

The present writ petition has been filed challenging the order of the 3rd

respondent, dated 12.10.2018 and to direct the first respondent to disburse the

petitioner's deducted pension amount.

2. The case of the petitioner is that he served as a Agricultural Officer,

and retired from service on 31.03.2019 and he was allowed to retire from

service as per proceedings dated 29.03.2019. As per the proceedings issued by

the Joint Director of Agriculture, Theni dated 12.10.2018, petitioner's pay was

refixed, while he was serving as Agricultural Officer in the office of the

Assistant Director of Agriculture, Periyakulam as per the recommendation of

the Pay Grievance Redressal committee and recovery has been ordered for the

payment received from 01.12.2010 to 31.08.2018. While, the petitioner was in

service i.e, one month before his date of superannuation, a sum of Rs.3,81,742/-

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was recovered from the petitioner. Aggrieved by the said order, the petitioner

filed this writ petition.

3. The learned Counsel for the petitioner would submit that as per

G.O.Ms.No.401, Finance (Pay Cell) Department, dated 12.11.2020 in Para.19, it

is clearly stated that consequent on the implementation of revision of scale of

pay ordered by Pay Grievance Redressal Committee, 2019, it is ordered that any

excess emolument / Pension already drawn by the employees / pensioners in the

categories of Agriculture / Horticulture Officer and and its promotional posts in

Agriculture/ Horticulture Department upto October, 2020 shall not be

recovered. Moreover, the Hon'ble Supreme Court of India held in the White

Washer's case reported in 2015 (4) SCC 334 has categorically ordered that the

recovery from the employees who is due to retire within one year cannot be

recovered. In the present case, the petitioner's date of superannuation was on

31.03.2019, recover order has been issued on 12.10.2018, i.e., within four

months before the date of superannuation. Hence, he prayed to allow this writ

petition.

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

Based on the averments made in the counter affidavit, the learned Government

Advocate submits that before issuing the impugned order, the petitioner was

issued notice to submit his objections and accordingly, the petitioner submitted

his objections. Thereafter only, the impugned order is passed. In view of the

same, the petitioner cannot contend that there is violation of principles of

natural justice in issuing the impugned order and sought to dismiss the writ

petition.

5. This Court gives its anxious consideration to the submissions made by

the respective counsels and carefully perused the materials available on record.

6. Admittedly, the petitioner, who served as a Agricultural Officer, retired

from service on 31.03.2019. Now, the respondents are contemplating to recover

an amount of Rs.3,81,742/- on the ground that excess payment was paid to the

petitioner from 01.12.2010 to 31.08.2018, wrong fixation of pay to the

petitioner. The only issue to be considered in this writ petition is whether

respondents 2 and 3 are entitled to recover the alleged excess payment made to

the petitioner vide impugned proceedings at the verge of retirement or not?

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7. Considering the facts and circumstances of the case, this Court is of the

considered opinion that the 2nd and 3rd respondents are not entitled to recover

the said amount from the petitioner as it is contemplated before four month of

the retirement of the petitioner.

8. In fact, on several occasions, identical issue came up for consideration

before this Court. By following the proposition of law laid down by the Hon'ble

Apex Court reported in 2015 (4) SCC 334 (State of Punjab & Others Vs. Rafiq

Masih(White Washer) & Others), this Court set aside the proceedings of

recovery in W.P.No.6945 of 2022, dated 26.06.2023 and in W.P(MD)No.16106

of 2016, dated 20.07.2023. The relevant portion of the judgment of the Hon'ble

Apex Court in Rafiq Masih (White Washer) (supra), is extracted herein under:

“18. 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 ClassIV service (or Group C and Group D service).

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(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 employers right to recover.”

9. One of the guidelines as relevant to the present case is that no recovery

to be initiated from retired employees or employees, who are due to retire within

one year of the order of recovery. In the present case, the petitioner retired on

31.03.2019. The respondents passed order for recovery of the excess payment

on 12.10.2018. Thus, the impugned order is unsustainable.

10. The Hon'ble Apex Court in Thomas Daniel case, while considering

identical issue, held as extracted herein under:

“(14) Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by

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the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General.

(15) Having regard to the above, we are of the view that an attempt to recover the said increments after passage of ten years of his retirement is unjustified.”

11. This Court in W.P.(MD) No.17154 of 2016 and W.P.(MD) No.22395

of 2016, while dealing the identical issues, has set aside the orders for recovery

impugned therein.

12. On consideration of the facts and circumstances of the present case

and in the light of the authorities stated supra, this Court has no hesitation to

hold that the action of the third respondent in issuing the impugned order for

recovery from the pension of the petitioner is illegal, arbitrary, unjust and in

violation of the principles of natural justice and accordingly, the impugned

order is liable to be set aside.

13. For the above reasons, the Writ Petition is allowed with the following

directions: -

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i) The order in No.A1/4274/2015 dated 12.10.2018, issued by the third

respondent is hereby set aside.

ii) Any amount recovered from the petitioner or arrears if any, shall be

paid within a period of six (6) weeks from the date of receipt of copy of this

order.

There shall be no order as to costs.

24.03.2025

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