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2015 Supreme(AP) 463
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
R. KANTHA RAO, J.
S. Ganapathi Rao – Petitioner
Versus
Telangana State Road Transport Corporation, rep. by its Managing Director & Others – Respondent
Writ Petition No. 16652 of 2015
Decided on : 24-07-2015
Advocate Appeared:
For the Petitioner:V. Narasimha Goud, Advocate.
For the Respondents:N. Vasudeva Reddy, Advocate.
Headnote:
Constitution of India, Article 226 – Appointment – Promotion – Retirement at age of Superannuation – Petitioner joined service in the respondents-Corporation as a Mechanic on regular basis. He was promoted as Grade-I Mechanic in the Subsequently, he was given the post of Trimmer on transfer from the mechanic post. He retired on attaining the age of superannuation. According to the petitioner, his entire service benefits were not arranged and as on the date of his retirement, there were more than 300 earned leaves and other half pay leaves at his credit. it is submitted that while arranging the gratuity, the 3rd respondent deducted Rs.18,000/- without any notice or assigning any reasons. By the un-availed earned leaves, the petitioner was supposed to get more than Rs.3,52,000/- as he was drawing the basic pay Rs.18,560/- and D.A. of Rs.12,884/- and other allowances. When the petitioner insisted upon the respondents to assign reasons for paying lesser benefit, they did not furnish any reason. He made an application under the Right to Information Act, requesting to furnish the details of payment of lesser monitory benefits. They furnished statement of pay fixation done right from 1994 to the date of his retirement. On verification petitioner came to know that they recovered Rs.1,39,010.20 duly reducing the pay from Rs.18,565/- to Rs.18,045/-. said recovery was done without any notice or opportunity to the petitioner. It is further submitted that the respondents have no authority to recover any amount from the benefits of the employee after his retirement, as there is no misrepresentation or fraud on the part of the petitioner, nor he had any role in fixation of pay or in calculating the monetary benefits –Held, “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 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 Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. 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. 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. 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. Turning to the facts of the present case, the petitioner was retired from service on 31.08.2014 and the retirement benefits were paid to him in the month of March, 2015, deducting an amount of Rs.1,39,010/-. Admittedly, the petitioner is a Class-III employee. The amount was withheld from out of the retirement benefits after retirement of the petitioner. Recovery of the said amount, in the considered opinion of this court, is iniquitous, harsh and arbitrary, as it relates to Class-III employee, after his retirement – Writ petition is allowed.
1. Heard Sri V. Narasimha Goud, learned counsel appearing for the petitioner and Sri N. Vasudeva Reddy, learned standing counsel for respondents-Corporation.
2. The petitioner joined service in the respondents-Corporation as a Mechanic on 03.02.1979 on regular basis. He was promoted as Grade-I Mechanic in the year 1994. Subsequently, he was given the post of Trimmer on transfer from the mechanic post. He retired on 31.03.2014 on attaining the age of superannuation. According to the petitioner, his entire service benefits were not arranged and as on the date of his retirement, there were more than 300 earned leaves and other half pay leaves at his credit. Nextly, it is submitted that while arranging the gratuity, the 3rd respondent deducted Rs.18,000/- without any notice or assigning any reasons. By encashing the un-availed earned leaves, the petitioner was supposed to get more than Rs.3,52,000/- as he was drawing the basic pay Rs.18,560/- and D.A. of Rs.12,884/- and other allowances. When the petitioner insisted upon the respondents to assign reasons for paying lesser benefit, they did not furnish any reason. He made an application on 07.04.2015 under the Right to Information Act, requesting to furnish the details of payment of lesser monitory benefits. They furnished statement of pay fixation done right from 1994 to the date of his retirement on 01.06.2015. On verification, the petitioner came to know that they recovered Rs.1,39,010.20 duly reducing the pay from Rs.18,565/- to Rs.18,045/-. The said recovery was done without any notice or opportunity to the petitioner. It is further submitted that the respondents have no authority to recover any amount from the retiral benefits of the employee after his retirement, as there is no misrepresentation or fraud on the part of the petitioner, nor he had any role in fixation of pay or in calculating the monetary benefits. Hence, the petitioner was constrained to invoke the extraordinary jurisdiction of this court under Article 226 of the Constitution of India, having left with no other efficacious remedy. He prayed for issuance of writ of Mandamus declaring the action of the respondents in recovering a sum of Rs.18,000/- from the gratuity and also recovering a sum of Rs.1,39,010/- from the retirement benefits of the petitioner while paying it in the month of March, 2015, as illegal, arbitrary and in violation of Articles 14, 21 and 300-A of Constitution of India and consequently sought a direction to the respondents to refund a sum of Rs.18,000/- and also Rs.1,39,010.20 along with interest at the rate of 18% per annum.
3. Counter-affidavit is filed by the respondents contending inter-alia as follows:
i) As per the re-categorisation of Trimmer, the petitioner automatically came under the cadre equal to Mechanic grade-II. As per the leave record as audited by the Audit Wing, the petitioner had 298 earned leaves for which amount was paid to him. Therefore, the averment that the petitioner had more than 300 earned leaves and other half pay leaves is incorrect.
ii) The allegation that the 3rd respondent while arranging gratuity deduced Rs.18,000/- is not correct, baseless and misleading. In fact, the petitioner himself agreed for adjusting Rs.20,000/- for payment towards Retired Employees Medical Benefit Scheme vide his application dated 01.08.2014. In so far as non-payment of Rs.1,39,010/- is concerned, the said amount was deducted from the Terminal Leave Encashment towards excess payment made to the petitioner at the time of fixation as Mechanic Grade-I by allowing notional increment. In fact, the petitioner was not entitled for the notional increment, since he was already granted 12 years Special Grade stagnation fixation before his promotion. The said discrepancy was pointed out by the Audit Wing while arranging the retirement benefits. As per Regulation 9(1)(a) of the APSRTC Employees (Pay and Allowances) Regulations, 1964, when an employee, who was placed on Special Grade on com
