Andhra Pradesh High Court - Amravati
Y.Nagamani, vs The State Of Andhra Pradesh, on 10 November, 2022
HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA
WRIT PETITION No. 26778 of 2021
ORDER:
This writ petition is filed to declare the order dated 15.09.2021 passed by the 2nd respondent in revising and re-fixing the earlier fixation done on 04.04.2008 and 09.07.2010 and fixing the pay lower than that of the earlier pay, is illegal, arbitrary, contrary to Pension Rules and contrary to the principles of natural justice.
2. Heard learned counsel for the petitioner and learned Government Pleader for Services-II appearing for the respondents.
3. Briefly, the case of the petitioner is that her husband retired from service on 20.02.2019 and later he died on 27.01.2020. Initially, the husband of the petitioner was appointed in A.P. Heavy Machinery and Engineering Ltd. in the year 1982. On deputation, her husband and other continued in Marketing Department (C & F) by virtue of the Government Orders in the year 1994. On obtaining no objection from their parent department for permanent absorption based on the proposal of the 2nd respondent, the 2 NV,J W.P.No.26778 of 2021 Government Issued G.Os permanently absorbing the petitioner's husband and accordingly, he was absorbed w.e.f. 02.03.1995. In O.A.No.5792 of 2001 filed by the petitioner's husband questioning non-fixation of pay as per the Revised Pension Rules, 1993-1999, the A.P. Administrative Tribunal initially granted interim order directing the Government to act upon the proposal submitted by the 2nd respondent with regard to pay fixation. Subsequently, the Tribunal allowed the O.A. on 21.10.2007. Accordingly, the pay of the petitioner's husband was fixed from 02.03.1992 at Rs.2,600/- adding an increment every year protecting the last pay, in view of G.O.Rt.No.400 dated 04.04.2008. While so, after retirement of the husband of the petitioner on 28.02.2019 and after his death on 27.01.2020, the 2nd respondent passed orders revising the earlier fixation and taking away the fixation for three years i.e., from 1992 to 1995 and fixing the pay from 02.03.1995 afresh without issuing any notice, which resulted in recovery of a minimum of Rs.9.00 lakhs - Rs.10.00 lakhs. Aggrieved thereby, the petitioner filed the present writ petition.
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4. Learned counsel for the petitioner would contend that without issuing any notice, the 2nd respondent passed the impugned orders revising the earlier fixation. The learned counsel would also contend that according to Sub Rule 8 of Rule 9 of the Revised Pension Rules, 1980, even in respect of disciplinary proceedings, if not concluded before the death of the Government servant, the proceedings shall stand abated and the family pension is to be paid to the family pension beneficiary or legal heir. The learned counsel would further contend that when the excess payment has been made for a period in excess of five years before the order of recovery is issued and that from the retired employees or the employees who are due to retire within one year of the order of recovery, recovery by the employer would be impermissible in law. In support of this contention, the learned counsel placed on reliance on the judgment rendered by the Hon'ble Supreme Court in State of Punjab Vs. Rafiz Masih (white washer)1. The learned counsel also contend that the action of the respondent authorities in not releasing the gratuity and other pensionary benefits of the petitioner's husband is illegal and against the principles of natural 1 (2015) 4 SCC 334 4 NV,J W.P.No.26778 of 2021 justice. In view of the above, the impugned order is liable to be set aside.
5. On the other hand, learned Government Pleader for Services- II would submit that nine persons were drafted from APHME Ltd., Vijayawada and their pay has been fixed from 01.07.1992 though they were absorbed in the year 1995. This was noted by the 2nd respondent and a letter was addressed to the Director, State Audit for clarification in respect of one P.V.S.Chalapathi Rao. The Director, State Audit, has clarified that P.V.S. Chalapathi Rao was absorbed from APHME Ltd., to Marketing Department w.e.f. 27.03.1995 and sanctioning of increments and pay fixation for the period prior to February, 1995 is not admissible. Similarly, the petitioner's husband was absorbed in this Department on 02.03.1995 and hence, prior to that crucial date, sanctioning of increments and pay fixation issued vide proceedings dated 09.07.2010 become erroneous and wrong. Further, the erroneous fixation from 1992 was rectified in the proceedings dated 15.09.2021, for which notice is not required to be given to the employees concerned. The learned Government Pleader would 5 NV,J W.P.No.26778 of 2021 also submit that before absorption, the petitioner's husband was working in APHME Ltd., Kondapalli, which is not a Government Department, and as such, he is not entitled to RPS, 1993. In view of the above, the writ petition is devoid of merits and is liable to be dismissed.
6. Upon perusal of the record and the submissions made by the learned counsel for the petitioner as well as the learned Government Pleader, it is an admitted fact that the petitioner's husband retired from service on 20.02.2019 on attaining the age of superannuation of 58 years. It is not in dispute that the petitioner's husband was initially was appointed in A.P. Heavy Machinery and Engineering Ltd in the year 1982 and subsequently, he was absorbed in the Marketing Department (C &F) permanently w.e.f. 02.03.1995.
7. The case of the petitioner is that the 2nd respondent passed the impugned orders revising the earlier fixation and taking away the fixation for three years i.e., from 1992 to 1995 and fixing the pay from 02.03.1995 afresh without issuing any notice, which 6 NV,J W.P.No.26778 of 2021 resulted in recovery of a minimum of Rs.9.00 lakhs - Rs.10.00 lakhs. It is also the case of the petitioner is that when the petitioner made a representation to the respondents seeking for release of the gratuity and other pension benefits of her late husband, she was informed that unless she gives an undertaking that she would pay the excess payment already made to her husband in the earlier fixations, the retirement benefits of her husband will not be paid.
8. A perusal of the entire record clearly reveals that no disciplinary proceedings were pending against the petitioner's husband. As per sub-rule 8 of Rule 9 of the Revised Pension Rules, 1980, even in respect of disciplinary proceedings if not concluded before the death of the Government servant, the further disciplinary proceedings shall stand abated and the family pension beneficiary or legal heir is entitled to receive the pension.
9. In State of Punjab (1 supra), the Hon'ble Supreme Court considered the issue of affecting recoveries, when fixations were made mistakenly and in para 18 of the judgment, it is held as under:
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NV,J W.P.No.26778 of 2021 " 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 one 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) 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 recovery."8
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10. In the present case, the petitioner's husband was a retired employee and his pay fixations made in the year 1992 were revised in the impugned orders dated 15.09.2021 i.e., after five years of pay fixations. So, the present case would undisputedly fall within the categories (ii) and (iii) delineated in the aforesaid decision of the Hon'ble Apex Court.
11. In Sushil Kumar Singhal Vs. Pramukh Sachiv Irrigation Department2, the Hon'ble Supreme Court also held that the mistake committed in pay fixation beyond period of 34 months prior to retirement of Government servant could not have been taken into account by the employer and neither any salary paid by mistake to the Government servant can be recovered nor pension of the Government servant can be reduced. In para 10 of the judgment, the Apex Court held thus:
"For the aforestated reasons, we quash the impugned judgment delivered by the High Court and direct the respondents not to recover any amount of salary which had been paid to the appellant in pursuance of some 2 (2014) 16 SCC 444 9 NV,J W.P.No.26778 of 2021 mistake committed in pay fixation in 1986. The amount of pension shall also not be reduced and the appellant shall be paid pension as fixed earlier at the time of his retirement. It is pertinent to note that the Government had framed such a policy under its G.O. dated 16.1.2007 and therefore, the respondent authorities could not have taken a different view in the matter of refixing pension of the appellant."
12. In view of the foregoing legal position, this Court is of the opinion that the contentions raised by the learned Government Pleader are not sustainable and the impugned order warrants interference.
13. Accordingly, the Writ Petition is allowed and the order dated 15.09.2021 passed by the 2nd respondent is set aside. No order as to costs.
Consequently, miscellaneous applications, if any, pending shall stand closed.
____________________________________ VENKATESWARLU NIMMAGADDA, J 10th November, 2022 cbs 10 NV,J W.P.No.26778 of 2021 HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA Writ Petition No. 26778 of 2021 10th November, 2022 cbs 11 NV,J W.P.No.26778 of 2021