Dr.T.Sarala, Vs The State of Andhra Pradesh

DR.T.SARALA,, D/O.T.SUBRAHMANYAM, AGED 61 YEARS, 0CC- JOINT DIRECTOR, VIJAYAWADA (YET TO BE REINSTATED), ANDHRA PRADESH STATE INSURANCE MEDICAL SERVICES, R/O.D.NO.2-27-25, GOKUL STREET, SRINAGAR, KAKINADA-533003, KRISHNA DISTRICT.

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...PETITIONER

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AND

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THE STATE OF ANDHRA PRADESH, REP. BY ITS PRINCIPAL SECRETARY, LABOUR BOILERS, FACTORIES AND IMS DEPARTMENT, SECRETARIAT, VELAGAPUDI, AMARAVATHI-522238, GUNTUR DISTRICT.

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THE DIRECTOR, ANDHRA PRADESH STATE INSURANCE MEDICAL SERVICES, GOVERNMENT OF ANDHRA PRADESH, ENIKEPADU, VIJAYWADA-521108, KRISHNA DISTRICT.

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THE SUPERINTENDENT MEDICAL, ESI HOSPITAL, RAJAMAHENDRAVARAM-533105, EAST GODAVARI DISTRICT.

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THE INCHARGE MEDICAL OFFICER, ESI DISPENSARY, ATCHUTAPURAM-531011, ANAKAPALLI DISTRICT.

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2

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THE INCHARGE MEDICAL OFFICER, ESI DISPENSARY, SAMBHAMURTHY NAGAR, KAKINADA-533001, KAKINADA DISTRICT.

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DR R SURYANARAYANA RAO, IN-CHARGE MEDICAL OFFICER, ESI DISPENSARY, DUWADA, R/O.D.NO.31-2745/1, PRINCE ENCLAVE, KURMANNAPALEM-530046, VISAKHAPATNAM DISTRICT.

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DR G JAGADEEP GANDHI, JOINT DIRECTOR, IMS, YNR HEIGHTS, ENIKEPADU, VIJAYAWADA-521108.

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DR K JHANSI VIJAYA KUMARI, CIVIL SURGEON RMO (RETD), ESI HOSPITAL, VIJAYAWADA, R/O.D.NO.28.4.46, PEDDAVEEDHI, JAMPETA, RAJAMAHENDRAVARAM-533 103.

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...RESPONDENT(S):

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ of Mandamus or any other writ or order or direction to the respondents herein To suspend the impugned proceedings dated 25.05.2022 and its consequential proceedings in Rc.No.331871/A1/E.S.I.D-A.C.P/2022, dt.01.03.2022 issued in pursuance of the proceedings Rc.No.316475/ A1/ E.S.I.D/ A.C.P/ 2022, dated 25.05.2022 and direct the respondent Nos.1 and 2 to refund the amount of Rs.4,00,688/- (Rupees Four Lakhs Six Hundred Eighty Eight only) forthwith with interest @ 12 percent per annum.

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IA NO: 1 OF 2023

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the respondent Nos.1and2 to refund the amount of Rs.4,00,688/- (Rupees Four Lakhs Six Hundred Eighty Eight only) forthwith with interest @12% per annum pending disposal of the above Writ Petition.

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`IA NO: 1 OF 2024

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct Respondent Nos.1 to 3 to release of the stopped salary for the month of January, 2024 and to pass such other order.

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IA NO: 1 OF 2025

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to pass an order for listing the case for hearing in the motion caption for protecting me from false and fraudulent impugned proceedings as early as possible for ending the persecution and pass such other order.

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IA NO: 2 OF 2025

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased May be pleased to grant leave to file counter affidavit in W.P.No.24650 of 2023 and pass such other order.

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Counsel for the Petitioner:

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1.PADI RAMA MANOHARA RAO

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Counsel for the Respondent(S):

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1.GP FOR SERVICES III

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2.GP FOR SERVICES IV

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The Court made the following:

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HON’BLE SRI JUSTICE NYAPATHY VIJAY

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WRIT PETITION No.24650 of 2023

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ORDER:

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In the present Writ Petition the Petitioner is seeking to suspend the impugned proceedings dated 25.05.2022 and consequential proceedings in Rc.No.331871/ A1/ E.S.I.D-A.C.P/ 2022, dated 01.03.2023 wherein it was opined that an amount of Rs.5,00,860/- was sought to be recovered from the Petitioner, as the Petitioner was unauthorizedly absent to the duty from 29.06.2018 to 30.09.2018.

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The learned counsel for the Petitioner submits that the impugned order was passed without conducting any enquiry or without issuing any prior notice to the Petitioner and as such the recovery of salary that was drawn by the Petitioner for the period from 29.06.2018 to 30.09.2018 cannot be sustained. The learned counsel further submits that the alleged payments were not made on account of any misrepresentation by the Petitioner and that the Petitioner had retired from service on 31.01.2024.

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Learned Assistant Government Pleader for Services-III

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Smt. Indrani would submit that the impugned order was passed as the Petitioner did not report to her original place of posting at E.S.I.

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Dispensary, Kakinada and the Government had promoted certain individuals as Joint Directors of Insurance Medical Services and certain individuals including the Petitioner as Civil Surgeons (RMO) of certain E.S.I. Hospitals. However, the Petitioner did not handover the charge of the post of Joint Director of Insurance Medical Services to the incumbent nor joined the new place of posting and filed certain O.As before the A.P. Administrative Tribunal.

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The learned Assistant Government Pleader further submits that the O.A.No.310 of 2018 filed by the Petitioner was dismissed on 20.08.2018. Subsequently, on 28.08.2018, Respondent No.2 had directed the Petitioner to report at her original place of posting at E.S.I. Dispensary, Kakinada and the Petitioner had not reported thereto. Therefore, the period from 29.06.2018 to 30.09.2018 was treated as unauthorized absence and the salary for said period was rightly recovered from the Petitioner.

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Heard the respective counsels.

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In O.A.No.310 of 2018 filed by the Petitioner there was an

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order of status quo passed by the A.P. Administrative Tribunal on 05.07.2018 and applications were filed seeking to vacate the said order of status quo. The A.P. Administrative Tribunal after hearing

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the respective counsels dismissed the O.A.Nos.175 of 2018 and batch on 20.08.2018. Subsequently, the Petitioner had joined in the promoted post at E.S.I. Dispensary, Kakinada.

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It is not in dispute that the impugned order was passed without conducting any enquiry or without issuing any prior notice to the Petitioner. There is no determination whether the Petitioner was un-authorizedly absent and in the absence of such determination, the recovery is unsustainable. Further, the Respondent authorities did not take note of the status quo order passed by the A.P. Administrative Tribunal on 05.07.2018. Therefore, the impugned proceedings cannot be sustained.

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Lastly, the Hon’ble Supreme Court in the Hon’ble Supreme Court in Rafiq Mashi’ s case formulated certain situations, where recovery was made impermissible. Paragraph No.18 thereof is extracted below;

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“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, 9 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:

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(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

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(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

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(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.

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(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.

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(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.”

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The above Judgment of the Hon’ble Supreme Court holds good as on date and was followed in Thomas Daniel v. State of Kerala¹ and Jogeshwar Sahoo and Others v. The District Judge, Cuttack² .

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1 2022 LiveLaw (SC) 438

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2 2025 LiveLaw (SC) 396

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In the light of the Judgments referred above, as the Petitioner

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had retired from service in January, 2024 and it would be unfair to permit enquiry regarding un-authorized absence at this length of time. Therefore, the Writ Petition is allowed with the following directions;

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(i) The impugned proceedings dated 25.05.2022 and consequential proceedings in Rc.No.331871/ A1/ E.S.I.DA.C.P/2022, dated 01.03.2023 issued by Respondent Nos.1 and 2 respectively are hereby set-aside;

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(ii) No order as to costs.

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