Mr.P.Subramanian v. The Secretary To Government,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.09.2017
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM W.P.No.31239 of 2015 and W.M.P.Nos.1 of 2015 & 30901 of 2016 P.Subramanian ... Petitioner Vs.
1.The Secretary to Government, Personnel and Administrative Department, Secretariat, Fort St. George, Chennai - 600 009.
2.The Secretary to Government, Municipal Administration and Water Supply Department, Secretariat, Fort St. George, Chennai - 600 009.
3.The Director of Town Panchayats, Kuralagam, Chennai - 600 108.
4.The Assistant Director Town Panchayats, Thirunelveli Zone, Thirunelveli District 5.The Executive Officer, Sankar Nagar Town Panchayat, Thirunelveli District.
6.The Principal Accountant General (Accounts and Entitlements) Tamil Nadu, No.361, Anna Salai, Chennai - 600 018.
...Respondents
Writ Petition is filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, to call for the entire records of the 6th Respondent pertaining to the Proceedings No.Pen.12/U.No.1/PPO.No.C217110/SCN/15-16/64/40344 dated
17.07.2015 and Proceedings No.Pen.12/U.No.1/PPO.
No.C217110/RD/DW/11213229/15-16 dated 24.08.2015 and quash the same and consequently forbear the 6th Respondent herein from effecting recovery of alleged excess paid pensionary benefits from the Dearness Allowance on the pension of the Petitioner as illegal.
For Petitioner : Mr.N.Nithianandam For Respondents : Mr.K.Dhananjayan Special Government Pleader (R1 to R4) Mr.R.A.S. Senthilvel (R5) Mr.V.Vijayashankar (R6) * * * * *
O R D E R
Heard Mr.N.Nithianandam, learned counsel for the petitioner and Mr.K.Dhananjayan, learned Special Government Pleader for the respondents 1 to 4, Mr.Raj Senthilvel for the fifth respondent and Mr.V.Vijayashankar for the sixth respondent. 2.The orders of recovery dated 17.07.2015 and 24.08.2015 issued by the sixth respondent are under challenge in this writ petition.
3.The learned counsel appearing for the writ petitioner made a submission that the writ petitioner was holding the post of Executive Officer in Sankar Nagar Town Panchayat, Thirunelveli District and retired from service on 31.03.2008, on attaining the age of superannuation. However based on the last pay drawn particulars and the Government Order in force his pension was fixed and he has received the pension in accordance with the Government Order. Suddenly, the impugned order was passed revising the pension by stating that the revised pension fixed to the writ petitioner was erroneous and an over payment was made to him. In this regard, the sixth respondent issued the orders in proceedings dated 17.07.2017 and 24.08.2015. 4.
On a perusal of the orders, this Court is of the view that the error took place with regard to the revision of pay can be corrected. However, the recovery imposed not in accorded with the legal principles laid down by the Hon'ble Supreme Court in the case of State of Punjab and others v. Rafiq Masih (White Washer) & others case, (2015) 4 SCC 334.
"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.The Hon'ble Supreme Court of India has granted exemption in respect of the recovery as far as the retired employees are concerned in clause 2. In view of the principles laid down by the Hon'ble Supreme Court, no recovery can be imposed in respect of retired employees. However, the error took place in relation to the revision of pay shall be corrected and therefore, it is left open to the respondents to correct the error in fixation of pay or revision of pension, in respect of recovery, the same can not be done.
6.Accordingly, the impugned orders passed by the sixth respondent in proceedings dated 17.07.2015 and 24.08.2015 are quashed and the respondents are at liberty to refix the pension in accordance with the Government Orders and the Rules in force. If any amount has been already recovered from the pension of the writ petitioner the same is directed to be reimbursed, within a period of six weeks from the date of receipt of a copy of this order.
7.Accordingly, the writ petition stands allowed. However, there is no order as to costs. Consequently, the connected Miscellaneous Petitions are closed.
Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar ah To 1.The Secretary to Government, Personnel and Administrative Department, Secretariat, Fort St. George, Chennai - 600 009.
2.The Secretary to Government, Municipal Administration and Water Supply Department, Secretariat, Fort St. George, Chennai - 600 009.
3.The Director of Town Panchayats, Kuralagam, Chennai - 600 108.
4.The Assistant Director Town Panchayats, Thirunelveli Zone, Thirunelveli District 5.The Executive Officer, Sankar Nagar Town Panchayat, Thirunelveli District.
6.The Principal Accountant General (Accounts and Entitlements) Tamil Nadu, No.361, Anna Salai, Chennai - 600 018.
+1cc to Mr.V.VIJAYASHANKAR, Advocate, S.R.No.6619 +1cc to Mr.N.NITHIANANDAM, Advocate, S.R.No65739. RSY (CO) US 25/10/2017 W.P.No.31239 of 2015