ORDER

This Writ Petition is filed seeking for issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the order passed by the respondent, vide proceedings in Personnel Administration Department/PAD/182/11-12, dated 27.08.2011, quash the same and consequently direct the respondent to pay 45 days of privilege leave encashment to the petitioner.

2. The case of the petitioner is that the petitioner served in the respondent Bank in various capacities for more than 30 years and he retired from service of the respondent Bank on 30.06.2009 while he was working in the Palanganatham branch. Further, the petitioner had 182 days of privilege leave as on 01.01.2007, 175 days of privilege leave as on 01.07.2007 and 160 days of privilege leave as on 01.07.2008, which was revealed by the letter of the respondent dated 05.02.2007, 20.08.2007 and 12.09.2008.

3. Further, the Government of India, vide letter dated

07.01.2009 allowed additional sick leave to employees of RRBs as per entitlements of the employees of their sponsor banks with effect from 19.10.2005 and based on that, the petitioner's leave salary was settled immediately after retirement. The Senior Manager of the respondent Bank, vide his order dated 30.06.2009 permitted the petitioner to retire from service on 30.06.2009. At the time of his retirement, the respondent paid a sum of Rs.1,52,365/-(Rupees One Lakh, Fifty Two Thousand, Three Hundred and Sixty Five only), vide Demand Draft NO.212514, drawn on Pandyan Grama Bank, Palanganatham Banch, which is now renamed as Tamil Nadu Grama Bank, towards privilege leave encashment.

4. After retirement, the petitioner expected the respondent to credit 90 days medical leave to privilege leave account. As there was no response from the respondent, the petitioner sent a representation to the respondent dated 29.12.2010, The respondent, vide his letter dated 06.05.2011, sent a Demand Draft for a sum of Rs.19,800/-(Rupees Nineteen Thousand and Eight Hundred only) being the privilege leave encashment arrears payable to the petitioner as per Bipartite Settlement.

5. After the settlement of the above amount, the respondent, vide the impugned order dated 27.08.2011, informed that 100 days of leave has been ordered to his privilege leave account and that privilege leave encashment was paid for 141 days and the actual number of days in privilege leave account was 92 days only and as the privilege leave encashment has been paid in excess of 49 days to the tune of Rs.60,914.75/- and hence, the above said impugned order was passed for the recovery of the said amount. Challenging the same, the present writ petition is filed by the petitioner.

6. Learned Counsel appearing for the petitioner would submit that after retirement, there is no master and servant relationship for ordering recovery and in the present case, no notice was issued before passing the impugned order and without seeking any explanation from the petitioner, the respondent straight away passed the impugned order, which is unsustainable one. Further, without any misappropriation, any amount paid to the employer by the employee cannot be recovered and hence, the learned Counsel appearing for the petitioner would pray for setting aside the order of the respondent.

7. In support of his contentions, the learned Counsel appearing for the petitioner would rely upon the decision of the Honourable Supreme Court in State of Punjab and Others etc., Vs. Rafiq Masih (White Washer) etc., reported in (2015)4 SCC 334, wherein the Honourable Supreme Court held as follows:

“12. 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) Rec