S.Somu, v. The District Collector

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED 20.06.2019

CORAM

THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR W.P(MD)Nos.15086 to 15090 of 2016 and W.M.P(MD)Nos.11119 to 11123 of 2016 S.Somu .. Petitioner in WP(MD)No.15086/2016 A.Baskaran .. Petitioner in WP(MD)No.15087/2016 T.Pandi Bala Muruganandam .. Petitioner in WP(MD)No.15088/2016 S.Veerabadran .. Petitioner in WP(MD)No.15089/2016 S.Veluchamy .. Petitioner in WP(MD)No.15090/2016 Vs 1.The District Collector, Sivagangai District, 2.The Treasury Officer, District Treasury, 3.The Tahsildar, Sivagangai Taluk, .. Respondents in all W.Ps.

Prayer: Writ Petitions filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorari calling records of the 3rd respondent i.e. the Tahsildhar, Sivagangai relating to his memo No.Na.Ka. A4/10872/2015 dated 24.06.2016 and quash the same.

For Petitioners :Mr.Visvalingam For Respondents :Mr.A.Muthukaruppan Additional Government Pleader in all the writ petitions.

COMMON ORDER The recovery, after retirement, is sought to be challenged in these Writ Petitions.

2.Heard the learned counsel appearing on either side and perused the materials placed before this Court. 3.The case of the Petitioners is that lastly they served as Village Administrative Officers in various places in Sivagangai Taluk and retired from service on attaining the age of superannuation. The House Rent Allowance from 01.01.1996 was revised as per Government Orders in G.O.No.218, Finance (Allowances) Department, dated 23.03.1993 and as per G.O.Ms.No.162, Finance (Pay Cell) Department, dated 13.4.1998 and further clarification was issued in Government Letter No.30027/PC1/1998-1,dated 28.04.1998. As per the said Government Orders and Letter, House Rent Allowance was sanctioned and paid to the Petitioners. While so, on 24.06.2016, the Tahsildar, Sivagangai District/third respondent herein, issued memo in No.Na.Ka.

A4/10872/2015, canceling the revised House Rent Allowance paid to the petitioners and directed them to remit their respective amounts. The above said memo was issued without giving opportunity to the Petitioners to submit their explanations. Hence, the petitioners have come forward with these Writ Petitions, for the relief stated supra.

4.The learned counsel for the Petitioners relying upon the reported judgment in the case of State of Punjab and others . vs. Rafiq Masih(White Washer) and others reported in (2015) 4 Supreme Court Cases, 334, which stipulates the mode of recovery and opposing the stand taken by the respondents, sought to quash the impugned memo issued by the third respondent. 5.The learned counsel for the Petitioners further brought the notice of this Court to the order of this Court made in W.P (MD)No.2647 of 2014, dated 19.8.2016 in the case of D.Susairaj v.s. The District Treasury Officer, Perambalur and another, wherein, this Court at paragraph 10, has held as follows: ''10.

Even though it has been claimed, by the first respondent, that the Petitioner had given his consent for recovery, the said consent cannot be taken into serious consideration, as the Petitioner had raised objections against the recovery, in his representations made to the authority concerned. It is also clear from the decision of the Supreme Court, made in State of Punjab and others .vs.

that no recovery can be made from a retired employee'' 6.Such an issue was also considered by the Division Bench of this Court in W.A(MD)No.638 of 2012, dated 12.3.2018, in the case of the Executive Engineer, Public Works Department,(Machinery Sub-Division)Chennai-5 and another .vs. P.Karuppaiah, wherein, in para 4 it is held as follows:

''4.In the instant case, the Writ Court noted that without issuing notice to the respondent/Writ Petitioner, recovery was sought to be effected and it is not sustainable as it amounts to violation of principles of natural justice. In such circumstances, the Court would have remand the matter to the authorities for fresh consideration giving them liberty to issue show cause notice. We are to take a decision as to whether such course has to be adopted in the present appeal. The legal position as pointed out in the aforementioned decision leads to a conclusion that the respondent/Writ Petitioner is liable to make good the excess payment received by him, in the light of the undertaking. However, in the peculiar facts and circumstances of the case, the Petitioner having retired from service, the recovery of the excess amount of around Rs.20,000/-(Rupees twenty thousand only) shall not made.''

7.The Division Bench of this Court in Tamil Nadu Civil Supplies Corporation, represented by its Managing Director, No.12, Thambusamy Road, Kilpauk, Chennai-600 010 and another .vs. P.Ganesha Rao in W.A.No.207 of 2019, dated 24.1.2019, has passed an order on the same lines, which affirms that there shall not be any recovery and at paragraph Nos. 5 to 8, of which decision, it is held as follows:

''5.The learned counsel for the appellants would strenuously contend that the judgement of the Honourable Supreme Court in Rafiq case(cited supra) should not be applied, because the writ Petitioner/respondent himself has consented for recovery of the amount and once he has consented the government was completely at liberty to withhold the amount. He submitted that Rafiq's case (cited supra) will not be applicable, where the retired employee consented to the recovery of the amount, which has been paid in excess to him.

6.We are afraid that the said argument can hold water. There is nothing in the said judgement, which would state that if the employee consents, then the employer is at liberty to withhold such amount. The

law laid down by the Honourable Supreme Court in Rafiq's case(cited supra) categorically states there cannot be any recovery from a retired employee. No amount of consent by a retired employee would permit the employer to withhold any amount. The law laid down by the Honourable Supreme Court is binding on all. 7.As per Article 141 of the Constitution of India, the law declared by the Honourable Supreme Court is binding on all Courts within the territory of India. The said judgement of the Rafiq's case(cited supra) is bind, which categorically states that there can be no recovery from a person, who has retired.

8.During the course of the arguments, G.O.Ms.No.286, Finance(Pension) Department, dated 28.8.2018 was brought to our notice. A perusal of the said Government Order would show that the Government has implemented the above said decision and issued a Government Order.''

Hence, the learned counsel prayed for a similar order in these writ petitions as well.

8.The learned Additional Government Pleader appearing for the respondents has not objected to the decisions relied on the side of the petitioners.

9.Considering the facts and circumstances of the case and having regard to the submissions made on either side and also following the aforesaid decisions, the impugned orders passed by the third respondent in No.Na.Ka.A4/10872/2015 dated 24.06.2016 stand quashed. Any recovery so far made, be refunded to the petitioners within a period of eight weeks from the date of receipt of a copy of this order.

10.The Writ Petitions are disposed of with the above direction. No costs. Consequently, W.M.P(MD)Nos.11119 to 11123 of 2016 are closed.

Sd/- Assistant Registrar (C.O) // True Copy // Sub Assistant Registrar(CS ) To 1.The District Collector, Sivagangai District,

2.The Treasury Officer, District Treasury, 3.The Tahsildar, Sivagangai Taluk, +5 CC to Mr.S.VISVALINGAM, Advocate SR-70342 to 70346. +1 CC to SPL GP SR-70668.

W.P(MD)Nos.15086 to 15090 of 2016 20.06.2019 CS(25.07.2019) 5P 10C