N.Nagarajan, v. State Of Tamil Nadu,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE M.S.RAMESH W.P.No.29654 of 2011 and M.P.No.1 of 2011 WMP.NO.12884 of 2017 N.Nagarajan
...Petitioner
-Vs1.State of Tamil Nadu, Rep. by its Secretary, Finance Department, Fort St. George, Chennai - 600 009.
2.The Director of Local Fund Audit, Kuralagom, Chennai - 600 108.
3.The Commissioner, Cuddalore Municipality, Cuddalore.
...Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, calling for the records relating to the recovery proceedings in e.f.vd': 13973-09-rp1, dated 07.12.2011 passed by the 3rd respondent and quash the same and direct the respondents to pay the pensionary benefits with 18% interest. For Petitioner : Mr.A.R.Nixon For Respondents: Mr.T.Chezhiyan, AGP
ORDER
With the consent of both the parties, this writ petition is taken up for final disposal.
2. The petitioner herein had retired from service as a Revenue Assistant on 30.04.2010. Based on an internal audit objection by the Director of Local Fund Audit, the third respondent herein had issued the impugned proceedings dated 07.12.2011, ordering for recovery of a sum of Rs.1,17,563/-, on
the ground that the petitioner's pay, during his service, was excessively fixed.
3. Apparently, the order of recovery has been passed without any prior notice and as such, the impugned order is in violation of the principles of natural justice.
4. The Hon'ble Supreme Court in the case of State of Punjab Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334, has categorically held that recovery from a retired employee, particularly when the mistake of excess payment was on the part of the employer, is impermissible in law. The relevant portion of the order reads as follows:- "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 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."
5. In view of the law laid down by the Hon'ble Supreme Court in White Washer's case (supra) and also by taking note of the fact that the order is in violation of the principles of natural justice, the action initiated by the third respondent for recovering the amount, cannot be sustained. Since the entire proceedings is illegal, the third respondent is bound to repay the aforesaid amount, together with interest.
6. In the light of the above observations, the impugned order dated 07.12.2011 is quashed. Consequently, there shall be a direction to the third respondent to forthwith refund the amount of Rs.1,17,563/-, together with interest at the rate of 12% per annum (compounded annually), to the petitioner, from the date of recovery till the date of actual payment. The third respondent shall endeavour to pass such orders of refund, atleast within a period of four (4) weeks from the date of receipt of a copy of this order.
7. The Writ Petition stands allowed, accordingly. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(CS VIII) //True Copy// Sub Assistant Registrar hvk To 1.The Secretary, Finance Department, Fort St. George, Chennai - 600 009.
2.The Director of Local Fund Audit, Kuralagom, Chennai - 600 108.
3.The Commissioner, Cuddalore Municipality,Cuddalore.
+1 cc to Mr.A.R.Nixon, Advocate Sr.NO. 19758 +1 cc to Government Pleader Sr.NO. 19891 W.P.No.29654 of 2011 and M.P.No.1 of 2011 GPL(CO) A.SK(01/04/2022)