Court in State of Punjab Ors v. Rafiq Masih

W.P.(MD) No.20328 of 2016BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved On : 27.06.2025 Pronounced on : 03.07.2025 CORAM:THE HONOURABLE DR. JUSTICE A.D. MARIA CLETE W.P. (MD) No.20328 of 2016andW.M.P. (MD) No.14527 of 2016P.Arul Jose,S/o.Thiru.S.Paraparathadimai,Door No.5, Nehru Nagar 2nd Street,Kajamalai, Tiruchirapalli - 620 023 ... PetitionerVs.1.The Secretary to Government,Finance (Pay Cell) Department,Secretariat,Chennai - 600 009.2.The Director of Treasuries and Accounts,Panagal Buildings, Saidapet,Chennai - 600 015.3.The Joint Director of Treasuries and Accounts,Treasury & Accounts Department,Old Collectorate Buildings,Tiruchirapalli.4.The Treasury Officer,District Treasury,Tiruchirapalli. ... Respondents1/10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.20328 of 2016PRAYER in W.P.: To issue a Writ of Certiorarified Mandamus or any other order or directions in the nature of a writ calling for the records of the third respondent relating to the impugned order issued in No.R.O.C.No. e.f.vz;.1314/2014/M ehs;:24.06.2016 and quash the same and consequently direct the 3rd and 4th respondent i.e., the Joint Director of Treasuries & Accounts, Tiruchirapalli and the Treasury Officer, District Treasury, Tiruchirapalli to restore the old pension of the petitioner fixed as per G.O.(Perm)No.71 Finance Department dated 26.02.2011 and refund the sum of Rs.37,493/- recovered from the petitioner’s pension from March 2015 to June 2015 since the above said recovery is quite against the dictum of the Hon'ble Supreme Court in the case of the State of Punjab and Others reported in (2015) 4 SCC 334 and orders dated 27.02.2014 of the Principal Division Bench, Chennai, within a specified time frame that may be fixed by this Hon'ble Court and pass such other order as may be deemed fit and proper in the circumstances of the case and render justice.PRAYER IN W.M.P.:To direct the 3rd & 4th Respondents to continue to pay forthwith the old pension fixed as per G.O.(Ms.)No.71, Finance Department, dated 28.02.2011, on par with other employees and as per the common judgment dated 27.02.2014 of the Principal Division Bench, Madras and 2/10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.20328 of 2016as per the Government letter No.5313/PayCell/2015-1 dated 25.09.2015, till the disposal of the above writ petition and thus render justice. APPEARANCE OF PARTIES:For Petitioner : Mr. S. VisvalingamFor Respondents : Mr.J.Ashok, Additional Government Pleader J U D G M E N THeard.2. In this writ petition, the Petitioner, who is a retired pensioner and is presently 80 years of age, challenges the order passed by the 3rd Respondent dated 24.06.2016. Pending disposal of the writ petition, this Court had directed that the Petitioner's pension shall be paid without any deduction.3. The operative portion of the impugned order reads as under:“jdpah; NfhhpAs;sthW> muRf;fbj vz;.46373/Cjpaf;FO/13-8 ehs;: 27.03.2014 kw;Wk; 27670/CMPC/2014-1 ehs;: 28.05.2014 ,itfisr; Rl;bf;fhl;b> Xa;T+jpa epYit jpUk;g Nfhug;gl;Ls;sJ. filrpahf ngwg;gl;l muRf;fbjk; 3/10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.20328 of 201653137/Cjpaf;FO/2015-1 ehs;: 25.09.2015 njhptpf;fg;gl;Ls;s “I am to clarify that the employees appointed by direct recruitment or recruitment by transfer or promotion to the categories (52 Nos.) of posts covered by the G.O.(Ms.)No.242, Finance (PC) Department, Dated : 22.07.2013 on or after date of the Government Order are entitled only to the Pay scale indicated against each in the above said Government Order as there is no question to pay anamoly to the new recruits and the higher pay scales granted to the existing incumbents is being contested by the Government in the Honourable Supreme Court of India” vd;gjd; mbg;gilapy; 22.07.2013-f;Fg; gpd;dh;> gpbj;jk; nra;ag;gl;l Xa;T+jpak; jpUk;g toq;f muR tpjpfspy; ,lkpy;iy vd;gij njhptpj;Jf;nfhs;fpNwd;.“ 4. Learned counsel appearing for the Petitioner contended that the alleged excess payment made to the Petitioner by way of pay revision was not on account of any misrepresentation or fault on the part of the Petitioner, and therefore, no recovery ought to have been effected, particularly from the pensionary benefits. It was further submitted that the amount already recovered should be refunded. In support of this contention, reliance was placed on the judgment of the Hon'ble Supreme 4/10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.20328 of 2016Court in State of Punjab & Ors. vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334, and it was argued that the principles laid down therein would squarely apply to the facts of the present case.5. The aforesaid decision relied upon by the Petitioner was recently considered by the Hon'ble Supreme Court in Jogeswar Sahoo vs. The District Judge, Cuttack, reported in 2025 INSC 449. It is necessary to extract the following passage from the said judgment, which has a bearing on the present case:-“13. In State of Punjab v. Rafiq Masih (White Washer), wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus: “8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in 5/10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.20328 of 2016consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover. xxxxxxxxx 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. 6/10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.20328 of 2016 (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 recover.” 11. In the case at hand, the appellants were working on the post of Stenographers when the subject illegal payment was made to them. It is not reflected in the record that such payment was made to the appellants on account of any fraud or misrepresentation by them. It seems, when the financial benefit was extended to the appellants by the District Judge, Cuttack, the same was subsequently not approved by the High Court which resulted in the subsequent order of recovery. It is also not in dispute that the payment was made in the year 2017 whereas the recovery was directed in the year 2023. However, in the meanwhile, the appellants have retired in the year 2020. It is also an admitted position that 7/10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.20328 of 2016the appellants were not afforded any opportunity of hearing before issuing the order of recovery. The appellants having superannuated on a ministerial post of Stenographer were admittedly not holding any gazetted post as such applying the principle enunciated by this Court in the above quoted judgment, the recovery is found unsustainable.12. For the aforestated, we are of the considered view that the appeal deserves to be allowed. Accordingly, we allow the appeal and set aside the order of the High Court and in consequence the orders dated 12.09.2023 and 08.09.2023 by which the appellants were directed to deposit the excess drawn arrears are set aside.”6. In the considered opinion of this Court, the case of the Petitioner is squarely covered by the decision of the Hon'ble Supreme Court referred to above. Furthermore, the clarification made in G.O.(Ms.)No.418, Finance (Pay Cell) Department, dated 12.11.2020, pursuant to the recommendations of the Pay Grievance Redressal Committee constituted under orders of the Hon'ble Supreme Court removes any basis for alleging excess fixation of pay in the petitioner's case and further undermines the validity of the impugned recovery made from his pension. Accordingly, the Writ Petition stands allowed. However, there shall be no order as to 8/10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.20328 of 2016costs. If any recovery has already been made, the same shall be refunded to the Petitioner within a period of eight weeks from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petition is closed. 03.07.2025Index: Yes / NoSpeaking Order / Non-speaking OrderNeutral Citation : Yes / NoLSTo1.The Secretary to Government,Finance (Pay Cell) Department,Secretariat, Chennai - 600 009.2.The Director of Treasuries and Accounts,Panagal Buildings, Saidapet,Chennai - 600 015.3.The Joint Director of Treasuries and Accounts,Treasury & Accounts Department,Old Collectorate Buildings,Tiruchirapalli.4.The Treasury Officer,District Treasury,Tiruchirapalli. 9/10 https://www.mhc.tn.gov.in/judis W.P.(MD) No.20328 of 2016DR. A.D. MARIA CLETE, J LS Pre- delivery Judgment made inW.P. (MD) No.20328 of 2016andW.M.P. (MD) No.14527 of 201603.07.202510/10