Lakshmi v. The Commissioner

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 22.08.2017

CORAM

THE HONOURABLE MR.JUSTICE M.DHANDAPANI W.P.No.21338 of 2004 Lakshmi ... Petitioner Vs.

The Commissioner, Sivagangai Municipality.

... Respondent Prayer:

Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari to call for the records in R.O.C. No.C1/Audit/04 dated 19.02.2004, on the file of the respondent and quash the same as illegal, incompetent and without Jurisdiction.

For Petitioner : Mrs.S.R.Vissalni For M/s.V.Raghavachari For Respondent : No Appearance

O R D E R

The petitioner has filed this writ petition seeking issuance of Writ of Certiorari to call for the records in R.O.C. No.C1/Audit/04 dated 19.02.2004, on the file of the respondent and to quash the same as illegal, incompetent and without Jurisdiction.

2. Heard the learned counsel appearing for the petitioner.

3. The brief facts of the case is as follows: The petitioner/retired employee worked as a Sanitary worker with the respondent till September, 2002. Based on the request made by the petitioner to retire voluntarily, the respondent granted permission vide proceedings dated 27.11.2003, drawing the petitioner's pension as Rs.1,335/- from 01.10.2002 onwards and the balance retirement benefits were directed to be paid through the said proceedings. Thereafter, the respondent deducted a sum of Rs.448/- from the pension. Aggrieved by the said oral action, the petitioner made a representation to the respondent on 22.03.2004. In the meanwhile, on 19.02.2004, the respondent passed the impugned order stating that as per the

audit report, the petitioner was paid excess Dearness Allowance of Rs.12,358/- and the same was directed to be deducted from the pensionary benefits. Aggrieved by the said order, the present writ petition has been filed.

4. The learned counsel for the petitioner would submit that the said impugned order is non est in law, since no notice was issued and by mistakenly the employer paid the amount to the employee which cannot be recovered. He relied upon the decision of the Honourable Apex Court, reported in (2015) 4 Supreme Court Cases 334 (State of Punjab and others vs. Rafiq Masih (White Washer) and others, the relevant portion of which, reads as follows.

"10. In view of the aforestated constitutional mandate, equity and good conscience in the matter of livelihood of the people of this country has to be the basis of all governmental actions. An action of the state, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.

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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i)Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii)Recovery from the retired employees, or the employees who are due to retire within on year, of the order of recovery.

(iii)Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv)Recovey in cases when an employee has wrongfully been required bo 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 decision cited supra squarely applies to the present case on hand. Accordingly, the writ petition is allowed. No Costs.

Sd/- Asst.Registrar (CS VII) /true copy/ Sub Asst. Registrar msvm/pri To The Commissioner, Sivagangai Municipality.

+1cc to Mr.V.Raghavachari,Advocate sr.60502 W.P.No.21338 of 2004 sks(co) ss(12/9/2017)