M Jayamma vs. The State Of Andhra Pradesh

HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

WP.No.11521 of 2019

O R D E R:

This writ petition is filed for the following relief:

"To issue an order or direction more in the nature of Writ of Mandamus declaring that the action of the Respondents as illegal, irregular, highhanded against the of principals of natural justice i.e. in violation of Article 14 and 16 of Constitution of India in not issuing advance notice of my retirement in issuing impugned order in Roc.No.77/2013/F1 dated 02.07.2018 issued by the Commissioner of Municipal Administration directing petitioner to pay an amount of Rs.26,88,685/- then only the pension papers will be forwarded to settle the pension by issuing a writ of Mandamus and consequently set aside the impugned orders passed by the Commissioner of Municipality Chittoor District in proceedings Roc.No.77/2013/F1 Dated 02.07.2018 and pass.."

This Court has heard Smt. K.N.Vijayalakshmi, learned counsel for the petitioner and Sri Suresh Kumar Kalava, counsel appearing for the 4th respondent, who is the main answering respondent.

The brief case of the petitioner is that she was allowed to work as a Class-IV employee with the 4th respondent till 30.04.2018. The order by which she was directed to retire as on 30.04.2013 is in dispute. Learned counsel for the petitioner submits that the petitioner is an illiterate lady and Class-IV employee. According to her, the impugned order dated 02.07.2018 was issued stating that as per her date of birth, she had to retire on 30.04.2013, but she continued to work for a further period of five years. Therefore, the order was passed on 02.07.2018 after her retirement to recover the excess salary paid to her. Learned counsel assails this order and states that the petitioner did not make any misrepresentation or fraud and that she was allowed to continue in service. Respondents also did not looked into her recorded date of birth and therefore, she was allowed to continue in service. Relying upon State of Punjab and others v. Rafiq Masih and others1, learned counsel argues that the Hon'ble Supreme Court of India had given five situations in which the recovery cannot be made, even if payment is made in excess of the entitlement of the employee. Therefore, she prays for an order.

In reply to this, learned counsel for the 4th respondent argues that the petitioner also had the responsibility to retire on the actual date of superannuation. He points out that she is not entitled to continue to work and as she had unjustly enriched herself, she was bound to refund the amount paid over the five years. He also relies upon Government Memo dated 30.10.2004, in which there is a reference to an order passed by the Hon'ble Supreme Court of India in the SLP.No.3721 of 1997 i.e. referred therein. Relying on this,

¹ 2015 (4) SCC 334

learned counsel for the answering respondents states that as the petitioner therein did not have a right to continue in employment, the Hon'ble Supreme Court held that he did not have a right to claim any salary. Therefore, it is argued that the petitioner had no right to claim the salary, the refund should be ordered.

This Court after considering the submissions made, notices that the memo referred to deals with a case wherein an employee is claiming salary and other benefits for the period beyond his superannuation. The case before this Court is relating to an employee who has received the salary already and the same is now proposed to be recovered. Therefore, this Court is of the opinion that the judgment in the case of Rafiq Masih (supra) is the appropriate decision to be followed. The Hon'ble Supreme Court in Raiq Masih's case was dealing specifically with the issue of refund of excess payment. The Bench examined the earlier decisions and laid down the law. There is a clear ratio in this case. The issue before the Hon'ble Supreme Court was about recovery of the monitory benefits, which was given in excess of their entitlement. The Hon'ble Supreme Court also noticed like in the present case that there was no allegation that the employees were guilty of furnishing any incorrect information which lead to the higher payment. After considering the law on the subject, the Hon'ble Supreme Court laid down five

3

situations wherein recoveries would be impermissible in law, which are as follows:

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 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."

If the present case is examined against this backdrop, it is clear that the petitioner is not guilty of any fraud or misrepresentation. The order impugned is dated 02.07.2018 which is after the retirement of the petitioner on 30.04.2018. The impugned order also refers to the fact that she should have retired on 30.04.2013 and that she actually worked till 30.04.2018. Therefore, it is clear that the order dated 02.07.2018 is issued after she has retired from service. She is also a Class-IV employee.

In the opinion of this Court, the clauses (i) and (ii) of para 18 of the judgment of the Hon'ble Supreme Court are clearly applicable to the present facts. The petitioner is a Class-IV employee and she has retired from service before the impugned order was passed. Therefore, in view of the fact that the case of the petitioner fits within the two categories enumerated by the Hon'ble Supreme Court of India, this Court is of the opinion that the recovery proposed to be made is bad in law and contrary to the judgment of the Hon'ble Supreme Court of India. The respondents cannot recover the amounts said to have been paid in excess. The order dated 02.07.2018 proposing to recover is therefore set aside. As a consequence of this, IA.No.1 of 2021 is also allowed. The petitioner's pensionary benefits are directed to be settled.

Writ petition is therefore allowed. No order as to costs. As a sequel, the other miscellaneous petitions if any shall stand dismissed.

D.V.S.S.SOMAYAJULU, J

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Date: 25.08.2021 KLP