Madras High Court
C.Karuppiah vs The Principal on 18 December, 2019
Author: M.S.Ramesh
Bench: M.S.Ramesh
W.P.(MD)No.873 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:18.12.2019
CORAM:
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.(MD)No.873 of 2019
and
W.M.P.(MD)No.701 of 2019
C.Karuppiah ... Petitioner
vs.
1.The Principal,
V.S.S.Government Arts College,
Poolankurich,
Sivagangai District.
2.The Accounts Officer,
State Pay and Account Office,
Office of the Accountant General (A&E),
Chennai. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorarified Mandamus, to call for the
records relating with the order of the first respondent made in
Na.Ka.No.318/A/17, dated 02.11.2018 and quash the same as it is
arbitrary and illegal and in consequence to direct the respondents to
pay the petitioner, the amount of Rs.1,36,393/-, which was forfeited
towards the recovery of salary given in excess.
For Petitioner : Mr.K.Vijayanand
For R-1 : Mr.V.Anand
Government Advocate
For R-2 : Mr.P.Gunasekaran
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http://www.judis.nic.in
W.P.(MD)No.873 of 2019
ORDER
Though the petitioner had reached the age of superannuation on 31.03.2018, his retirement dues were not settled immediately and after repeated reminders, the first respondent had settled dues after deducting a sum of Rs.1,36,393/- quoting the same as excess salary paid, by the impugned order dated 02.11.2018. The said order is under challenge in the present writ petition.
2.The learned counsel for the petitioner submitted that such a forfeiture of alleged excess payment of salary is impermissible, in view of the decision laid down by the Hon'ble Apex Court reported in (2015) 4 SCC 393 in the case of State of Punjab and others Vs. Rafiq Mashih (White Washer) and others.
3.The learned counsel for the second respondent submitted that the salary was mistakenly paid in excess to the petitioner between the period from 01.01.2006 to 28.02.2011 and therefore, the said amount was forfeited from the retirement benefits of the petitioner. Even otherwise, he would submit that by a letter dated 01.03.2018, the first respondent College was informed about the excess payment and a copy of the same has also been marked to the petitioner. Since the mistake 2/10 http://www.judis.nic.in W.P.(MD)No.873 of 2019 was pointed out even prior to the petitioner, reaching his age of superannuation, there is no infirmity in the impugned order.
4.The learned Government Advocate for the first respondent would ratify that the petitioner herein was employed as a 'Lab Assistant' under the College and retired on 31.03.2018 itself.
5.I have given careful consideration to the submission made by the respective counsel.
6.Before adverting to the submissions made by the respective counsel, it would be appropriate to refer a recent decision of this Court in the case of Mariappan Vs. The Deputy Collector in W.P.(MD)No. 17348 of 2018, dated 18.12.2019, wherein a law laid down by the Hon'ble Apex Court in the case of White Washer's case (supra) was considered in detail and held as follows:-
“..7.It is not disputed that the petitioner herein has been paid with the arrears pursuant to his promotion from the post of Junior Assistant to Assistant with effect from 03.11.2015. Under the Tamilnadu Civil Supplies Corporation Employees' Service Regulations, 1989, the post of Assistant has been classified under GROUP-III.3/10
http://www.judis.nic.in W.P.(MD)No.873 of 2019 This is not disputed by the respondent. The issue as to whether the recovery of excess payment made to GROUP- III employees is no more res integra, in view of the decision of the Hon'ble Apex Court in the White Washer's case. The Hon'ble Apex Court while dealing with various instances, where, the recovery was held to be impermissible in law, had also brought into its purview on the recovery sought to be made from the employees belonging to Class III and Class IV service (or Group C and Group D service).
8.This situation was postulated by the Hon'ble Apex Court by taking into consideration the fact that the recovery from the lower rung of employees, would result in extreme hardship to them, since they would have spent their entire earnings in the upkeep and welfare of their family and if such excess payment is allowed to be recovered from them, it would cause them more hardship, than the reciprocal gains to the employer. Therefore, the Hon'ble Apex Court thought it fit to bring such situations for recovery as impermissible in law, since it would be iniquitous, arbitrary and in breach of the mandate prescribed under Article 14 of the Constitution of India. On this predominant ground, the recovery order itself cannot be sustained..”
7.In view of the settled proposition of law, this Court is of the affirmed view that the recovery from retired persons or persons who are due to retire within a period of one year, is impermissible in law. 4/10 http://www.judis.nic.in W.P.(MD)No.873 of 2019
8.In the light of the aforesaid proposition, I shall now advert to the submissions made by the learned counsel for the second respondent.
9.The learned counsel relied upon a decision of the Hon'ble Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others reported in (2014) 8 SCC 883, which reference placed before a Larger Bench for authoritative pronouncement on the difference of opinion rendered in Shyam Babu Verma Vs. Union of India reported in (1994) 2 SCC 521:1994 SCC (L&S) 683: (1994) 27 ATC 121 and Sahib Ram Vs. State of Haryana reported in 1995 Supp (1) SCC 18 and on the other hand in Chandi Prasad Uniyal and others Vs. State of Uttarakhand and others reported in (2012) 8 SCC 417. While holding the reference, the Hon'ble Apex Court had held that in the decisions in Shyam Babu Verma's case and Sahib Ram's case, directions were issued in exercise of the powers of the Hon'ble Supreme Court under Article 142 of the Constitution of India. But in the subsequent decision in Chandi Prasad Uniyal and others (supra), the powers of the Hon'ble Supreme Court under Article 136 of the Constitution of India was exercised and therefore, the decision of the Hon'ble Supreme Court under Article 142 5/10 http://www.judis.nic.in W.P.(MD)No.873 of 2019 cannot be weighed on par with the decisions under Article 136. Accordingly, the reference was returned as unnecessary and the matters were remitted back to the regular benches without answering the reference, for appropriate disposal. In the light of such a remand, the subsequent decision in State of Punjab and others Vs. Rafiq Mashih (White Washer) and others reported in (2015) 4 SCC 334 came to be pronounced. The learned counsel would rely on the decision in Chandi Prasad Uniyal and Others (supra) and submit that since the Hon'ble Supreme Court was of the view that the decision was under Article 136 of the Constitution, it would tantamount to laying down the correct proposition and therefore, since Chandi Prasad Uniyal and Others (supra) had held that excess payment made by the mistake was subject to recovery, there is no infirmity in the order. The relevant portion of the Hon'ble Apex Court in Chandi Prasad Uniyal and others' case (supra) reads as hereunder:-
“...14.We are concerned with the excess payment of public money which is often described as “taxpayers' money” which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by 6/10 http://www.judis.nic.in W.P.(MD)No.873 of 2019 the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc., because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
15.We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case and in B.J.Akkara case, the excess payment made due to wrong/irregular pay fixation can always be recovered..”
10.The aforesaid observations of the Hon'ble Supreme Court is self explanatory. While holding that the excess amount without the authority of the law can be recovered, the Hon'ble Apex Court had saved a few exceptions of extreme hardships, though not as a matter of right. Some of the instances pointed out in Syed Abdul Qadir's case and B.J.Akkara's case was also referred to therein. Pursuant to the decision holding that the reference in White Washer's case (Larger Bench), the subsequent decision in the White Washer case reported in (2015) 4 SCC 334 came to be pronounced. In the said decision, the reference 7/10 http://www.judis.nic.in W.P.(MD)No.873 of 2019 made in Chandi Prasad Uniyal and others (supra) to Syed Abdul Qadir case and B.J.Akkara case was also considered. On consideration of such instances, the Hon'ble Apex Court had postulated some of the instances, where the recovery could be held as impermissible in law. In view of the observations made in Chandi Prasad Uniyal and others (supra) that a few exceptions of extreme hardships could be excluded from the recovery proceedings and the subsequent decision in White Waher's case reported in (2015) 4 SCC 334, wherein the said situations were narrowed down and postulated, this Court is of the view that the instances mentioned therein could be adopted as a guideline. If so, the recovery made from the petitioner, who had reached his age of superannuation, cannot be sustained in view of Clause 18(ii) which states that recovery from the retired employees or the employees, who are due to retire within a period of one year, is impermissible in law.
11.The learned counsel for the second respondent also submitted that the contemplation to recover the amount was made even prior to the petitioner's retirement on 01.03.2018 itself. If the guideline stipulated by the Hon'ble Apex Court in 18 (ii) referred above is adopted, it can be said that such a proposal from the second respondent to the first respondent is also within a period of one year prior to the petitioner's date of superannuation which is again in 8/10 http://www.judis.nic.in W.P.(MD)No.873 of 2019 impermissible.
12.For all the forgoing reasons, this Court is of the affirmed view that the impugned action on the part of the first respondent herein recovering the alleged excess amount is impermissible. Accordingly, the impugned order in Na.Ka.No.318/A/17, dated 02.11.2018, is quashed and the Writ Petition is allowed. Consequently, the first respondent is directed to return the recovered sum of Rs.1,36,393/- to the petitioner as expeditiously as possible, in any event within a period of four weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.
18.12.2019 Index : Yes / No Internet: Yes / No sji To The Principal, V.S.S.Government Arts College, Poolankurich, Sivagangai District.
9/10 http://www.judis.nic.in W.P.(MD)No.873 of 2019 M.S.RAMESH, J.
sji W.P.(MD) No.873 of 2019 18.12.2019 10/10 http://www.judis.nic.in