K.Karunanithi v. The Accountant General ( A And E )
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.06.2024
CORAM:
THE HONOURABLE MS.JUSTICE R.N.MANJULA W.P.(MD) No.10236 of 2024 K.Karunanithi ... Petitioner Vs.
1.The Accountant General(A&E), No.361, Annasalai, Thenampet, Chennai-18.
2.The Director of Differently Abled Welfare, 5,Kamaraj Salai, Lady Wellington College Campus, Chennai-600 005.
3.The Administrative Officer, Government Rehabilitation Home, Y.Pudupatti, Madurai-625 104.
... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned proceedings issued by the 2nd respondent vide Se.Mu.Na.Ka.No.7129/Ma.E.Nir.1/2023 dated 13.02.2024 and quash the same on the ground that the same is arbitrary, illegal and without any legal basis and consequently directing the 2nd 1/8
respondent to send revised pension proposal for the petitioner, For Petitioner : Mrs.G.K.Chitra Devi For R1 : Mr.P.Gunasekaran For R2 & R3 : Mr.M.Lingadurai Special Government Pleader
ORDER
The present writ petition has been filed seeking a Writ of Certiorarified Mandamus, to quash the impugned proceedings of the 2nd respondent in Se.Mu.Na.Ka.No.7129/Ma.E.Nir.1/2023 dated 13.02.2024 and for a consequential direction to the 2nd respondent to send the revised pension proposal for the petitioner, based on the last pay drawn Rs.45,900/- in the revised pay matrix level 9/20000-63600 based on the pre revised scale of pay Rs.5200-20200+2600GP, within a specific time frame.
2. Heard Mrs.G.K.Chitra Devi, learned counsel for the petitioner, Mr.P.Gunasekaran, learned counsel for the 1st respondent and Mr.M.Lingadurai, learned Special Government Pleader for the respondents 2 & 3.
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3. The second respondent has passed the impugned order dated 13.02.2024 stating that there was an excess payment made to the petitioner for a sum of Rs.1,15,925/- for the period between 04.07.2013 and 31.07.2022 and the same has been deducted from the petitioner's retiral benefits. The petitioner has given a representation dated 10.08.2023 to the first respondent and in turn the same has been forwarded to the second respondent and the second respondent has passed an order of recovery as under:
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4. The grievance of the petitioner is that the order has been passed without giving him any notice and the recovery has been made after a period of several years without considering the legal position on this issue. The similar issue has already been settled in the judgment of the Hon'ble Supreme Court in the case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and others reported in 2015 (4) SCC 334, wherein it is held that the recovery of excess payment wrongly made by the employers is impermissible in law. The relevant paragraphs are extracted hereunder:
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"12.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 petitioner was working as a Head Warder and the recovery has been made in respect of the payment made between 04.07.2013 and 31.07.2022. The petitioner has not suppressed any material facts or he not instrumental in getting the excess payment of 5/8
salary. Even though the respondent can revise the salary of the petitioner, if sound reasons are found for any wrong payment, that can be done only after issuing notice to the petitioner and giving him an opportunity to make his submissions. But the impugned order has been passed without affording any opportunity to the petitioner.
6. Since the impugned order has been passed without giving any opportunity to the petitioner, the impugned order dated 13.02.2024 passed by the 2nd respondent is set aside. The 2nd respondent is directed to issue notice to the petitioner and give an opportunity to the petitioner to make his submission and fresh orders can be passed in case there is necessity for refix the pay. However, any recovery made in violation of the above legal position and without giving notice to the petitioner shall be reimbursed.
7. With the above direction, the Writ Petition stands disposed of. No costs.
03.06.2024 Index :
Yes / No Internet : Yes / No NCC : Yes / No PJL 6/8
To 1.The Accountant General(A&E), No.361, Annasalai, Thenampet, Chennai-18.
2.The Director of Differently Abled Welfare, 5,Kamaraj Salai, Lady Wellington College Campus, Chennai-600 005.
3.The Administrative Officer, Government Rehabilitation Home, Y.Pudupatti, Madurai-625 104.
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R.N.MANJULA , J.
PJL Order made in W.P.(MD)No.10236 of 2024 03.06.2024 8/8