Allowed

R. Sarala v. The Telangana State Road Transport Corporation

Telangana HC13 Sept 2023WP/5585/2017

Case brief

AI extract

What is this about?

Writ petition regarding recovery of excess ex-gratia allowance and denial of notional increments due to cancer treatment. Court followed Supreme Court precedent to declare illegal recovery after seven years.

What did the court decide?

Impugned order dated 01.11.2016 for recovery of Rs. 38,491/- set aside. Respondent directed to consider claim for notional increments based on regulation.

R. Sarala Vs The Telangana State Road… — Pension and Retirement Benefits | Telangana HC (2023)

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[³³⁰³ ]

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HIGH COURT FOR THE STATE^{OF TELANGANA} AT HYDERABAD (Special Original Jurisdiction)

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WEONESDAY, THE THIRTEENTH^{DAYOF SEPTEMBER} TWO THOUSAND AND TWENTY^THREE

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PRESENT

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THE HON'BLE SRI JUSTICE^{J. SREENIVAS RAO}

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WRIT PETITION No : 5585^{OF 2017}

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Between:

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R. Sarala, W/o. R. Vishnuvardhan^{Rao, Agedabout 52 years, Conductor (E-} 20887 4), Telangana State Road^{Transpoh Corporation,Uppal BusDepot,} Hyderabad, Telangana State.

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...pETl.otrER

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AND

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1 The Telanoana State Road Transport^{Corporation,, Represented by its} Manaqing^"Director, Bus^{Bhavan, Musheerabad,llyderabad,TelanganaState}

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2 irre R"eoional Manaqer.. Telanqana^{StateRoadTransport Corporation,} Hvderadad Reoion,^-MGBS, Gowliguda,^{Hyderabad, TelanganaState.}

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3 t6e Oepot Maiager,, Telangana^{State Rtiad Transport Corporation,Uppal} Bus Depot, Hyderabad, Telangana State

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...RES'oNDENT'

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Petition under Article 226 of^{the constitution of lndia praying that in the} circumstances stated in^{the affidavit filedtherewith, the High court may be} pleased to issue a writ or order or^{direction more particularlyone in the nature of} writ of Mandamus declaring^{that the action of the respondents herein in} recovering the amount^{paid towardswages/Exgratiaallowanceto the petitioner} in concerned during the^{cancer Treatmentperiod 't3-11-2005to 19-01-2009 and} not allowing notional increments^{for the said period is bad arbitraryillegal by} setting aside the officer^{order No. P11369(1y201 6-UPL dt. 01-1 1-2016of the 3rd} respondent herein and consequently^{direct the respondentsto allow the notional} increments for the above^{said period(1 3-11 -2005 to 19-01-2009) and not to} recover the^paid amount^{and direct to repay the amounts if any recovered}

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l.A. NO: 1OF 2017^(WPMP. NO:6^{80I OF 20171}

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Petition under Section 151^{CPC prayingthat in thecarcumstances stated} in the affidavit filed in support of^{the petition, the Highcourt maybe pleasedto} direct the respondents^{not to recover any amounts which were paidin concerned} with wages/Exgratia allowance^{for the periodfrom1 3-1 1-2005 to 19-01-2009}

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(Cancer Treatment Period) by suspending the Officer Order / No. P11369(1)12016-UpL dt. 01-11-2016 of the 3rd respondent

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lA NO: 1 oF 2022:

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Between:

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The Telang_ana State Road Transport Corporation,, Represented bv its

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^^{Managing Director, Bus Bhavan,lrarsneerEoad,ui;o.jiJoioliir",i#n""} st"tu 2. The Resionat Manaser,, Terangani5iar; Roai iA;;6;t",p;;Y;;: "" ,iils"{a|Bf #,.s;?hYf"li^,??:s[t*lr;llH,:;Im,,.::ii, jxh;,, Bus Depot, Hydeiabad, Teta-ngani Siib---

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...PET|T|oNERS/RESPONDENTS

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AND

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2oBBt 41. R. Sarala, Tela Wo. noa R. na Vis_hnuvardhan St_ate Road f I Rao, r s-vrvr anipot- Aged about r^-Corpo v raiiori 5? years, Conductor - Up-p"r e, J^"O"Jp"t, (E_ Hydera6ad, Tetaigana Stjte.'---

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Petition under Section is1 cpc prayins ,nr, ," iii[=L?3,],i:[tf"t"l']ii[: in the affidavit fired in support of the petition, the High court may be preased to vacate the interim stay granted in rA No.'112017(wpMp No.6B0g of 2017) in Wp No.5585 of 2017 dated 2OtO2l2O17

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Counsel for the^petitioner: SRI p. VENKATESWAR RAO

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Counsel for Respondents: SRI THOOM SRINIVAS

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(sc FoR TSRTC)

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The Court made the following: ORDER

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THE HON'BLE SRI JUSTICE J. SREENTVAS RAO

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WRIT PETITION No .5545 of 2Ol7 ORDER:

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This Writ petition ls filed seeking the following relief: -

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'to issue a writ or order or d.irection more palticularlA one in tLe nature of Writ of Mandamus declaring that tle action of tlrc respondents herein in recouerirtg. the ahount paid towards Wages/ Exgratia alloraance to the petitioner irt concertted during the Cancer Treatment peiod 13..1 l.2OOS 1o 19.O1.2OO9 and- not .ailoutng notional increrrlents for the said peiod is bad arbitrary illegal by setting aside the officer order No.plJSOg(t)tzolO_ UPL dated O1.11.2016 of the 3d respond.ent ?.n:!^{and consequentlydirect tlte resf,ondents} to allout the notional increments for ihe aboue said peiod (1.3.11.2OO5 to 19.O1-bOOS1 ond not to recouer the paid amount and direct to repaA tLe amounts if ang recouered."

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Heard Sri t).Venkateshwer Rao, learned counsel for

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the petitioner and Sri.Thoom Srinirzas, learned standing counsel for TSRTC appearing for respondent Nos. I to 3.

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Learned counsel for the petitioner submits that the petitioner was appointed as a conductor in the year 1998 in the respondent Corporation and her services were regularized w.e.f. O1.O1.1999- Later, the petitioner was affected with Breast Cancer Disease and was not able to attend duties from Cl.IO.2OC,4 to 3O.O1.2OO9 as she was undelgoing treatment for the said disease in

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RTC Tarnaka Hospital. Thereafter, the^{petiti'rner on} 31.O1.2OO9 reported the duty. It is^{furttrerstrbrnitted} that the respondent Corporation^{granted ExtraordinarY} l,eave for the period from^{13.05.2OO5 to 12.11.2OO5 arrd} subsequently granted EOL upto^30.O1-2OO9.

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Learned counsel for the petitioner^{submits that ttle} respondent Corporation under^{Regulation 50 (C) of} APSRTC Employees (Leave) Regulations;,^paid Rs. 1,OOO/- Per month as exgratia for^{the period from} 13.O5.2OO5 to 12.11.2OO5. Thereafter^theexgratia payment was not paid. However, the respondent Corporation had paid half leave salar5r^{upto 19.01.2OO9'} It is further subrnitted that during the^Auditan objection was raised alleging that the^rt:spondent Corporation had paid arr excess amount^{of Rs.38,49 1/-} to the petitioner and thereafter, the^{responrlentNo'3} issned impugned proceeding uide^No.PL /36t(Ll/2Oa6UPL dated 01.11.2016 and directed the^cornpetent Authority to recover an amount of Rs.38,491/-^{from the} petitioner.

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Learned counsel for the petitioner submits that the impugned proceeding dated O1.11.2016 has been issued by the respondent Corporation contrary to the regulations and also to the law laid doum by the Hon,lcle Supreme Court in State of punjab & others v. Raliq Masih (White Washer)r wherein, the Hon,ble Supreme Court has postulated the follou,ing situations, where recoveries by employer would be impermissible:

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'.'It i1 _not possible to postulate all situations of hardship whi:h ',+,ould govern employees on thl issue of recovery, u,here payments have mistakenly been. made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred lo hereinabove, we may, as a ready reference, summaries the foilowing few siluations, wherein recoveries by the empioyers, 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 v,ho 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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(i") Recovery in cases where an employee has wrongfully been required to discharge duties

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'^{(zots)n scc} a3l

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of a higher Post,^{and has becn} Paid iccordingly,^{even though he shouldhave} rightfulty been^{requiredto work againstan} inferior Post. O In any other^{case, where the court arrivesat} the conclusion,^{that recol'eryif mude .from} the employee,^{would be iniquitousor harslt} or arbitrary^{to suchan extent' as lvould} far ounueigh the^{equitablebalance of the} emPloYer's right^{to recoi'er"'}

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Learned counsel^{for the petitioner draws attention} of this Court to^{the clause 13 of (Pay and Allowance)} Regulation s'hich^{reads as under:-}

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"(1) A^{dutg in a post on a time-scale counts .for} incrernents in that^{time scale.}

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(2) Seruice in anotLer^{post, wlether} .in^a 'substctntize or officiating capacitg, sert'ice ott deputation and^{leaue- other than extro ordinary} leiue or leaue tuitlnut^{pay count} for^increntents in tle time-scale^{applicableto the post on} uthich the emplogee^{holds a lien, as raell a:; in} the time-scale applicable^{to th-e post or post:;, if} anA on which^{lt.e utould lnld a lien had his lien} not been susPended;

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Prouided. tlat the^{competent autloritgshnll} lwue the pou)er in^{ang case in uhich itis} satisfied that he^{ertraordinary} ,leaue^{or, le:aue} uithlut paA, as^{the case mag be utas ta-ken on} account^ of illness^{or anA other cause begond} the emptbgee's control,^{to direct tlutt s;uch} period sha,tt count for^{incrementsunder this} clause.

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Learned counsel for the petitioner further submits that as per the above clause the petitioner is entitled for Notional increment and pray this Court to set aside the impugned order dated O1,1 1.2016 and also direct the respondent Corporation to allow the Notional increments for the period from 13. 11.2OOS to 19.O1.2009.

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For contra, learned standing counsel appearing for respondent Nos. 1 to 3 draws attention of this Court to Regulation sO(C) (21 of Leave Regulations of the Corporation, which reads as under:-

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"(2) If the leaue due under clause (7) aboue, falls^{slnrt of tle peiodoJ treatmen|the} employee mag be granted ertra-ordinary leaue, While on extra-ordinarg leaue, the competent authoritg mag grant "exgratia." pagment equal to lwlf of his/ Ler pay without ang allowance or Rs. 1,OOO/- (Rs.One thousand only) whicleuer is less for the ma-rimurn peiod of 6^(six) months on production of a certificate from tte Chief Medical Officer, APSRT'C Hospital."

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l,earned standing counsel further subrnits that as per the above provisions, the petitioner is entitled for exgratia @ Rs. l,OOO/- per- month for a rnaxirnum period

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of six months. But, the respondent Corpoi:ation had erroneously paid excess amount of Rs.38,4!)ll- ai:d when the salne was found during audit, the respondent Corporation had rightly issued proceedirLg dated o1.11.2016.

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In so far as the claim of the petitioner in respect of EOL period is concerned, the learned standing counsel submits that the petitioner repi-esentation has treen forwarded to the Cornpetent Authority i.e., r-r:spondent No.1 and the same is still pending with the rr:spondent No. 1.

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Having considei'cd thc submissions ma.jc by the respective parties and upon perusal of the m.aterial on record, it is evident that the respondent corpor:ation tr,ad paid exgratia allowances to the petitioner cluring the time of taking cancer treatment period 13.O5.2OO5 to I2.ll.2OOS @ Rs.1,OOO /- per month. After lapse of more than 7 years the respondent corporation isstred impugned order dated O1.1l.2OiS for recovery of an

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arnount of^{Rs.38,49l/-on the ground that respondent} corporation^{paid the excess amount per month towards} exgratia for the^{period13.O5.2OO5 to the petitioner' As} per the principle law^{taid down by the Hon'ble Supreme} Court in State of^{Punjab & others v. Rafiq Masih (White} Washer) cited " supra"^{the impugnedproceedingsdated} 01.11.2Oi6 issued^{by the respondent corporationis} liable to be d.eclared^{as illegal and contrarS/ to law and} the same is liabte^{to be set aside accordingly set aside'}

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In so far as^{the ctaim of the petitioner for counting} the EOL^{period forissuingincrements onmedical} ground is concerned^{the respondentsthemselves stated} in the counter that^{the representationof the petitioner} was forwarded^{tocompetentauthority uide case} No.Pl1255(II/2OL6-UPL,^{datedl2'O2'2Ot6 andtJ-e} same is pending^{before the respondent No'l'In view of} the same, the^{respondent No.l is directed to consider} the claim of^{thepetitioner by duty takinginto} consideration^{of the clause 13 of (Pay and Allowance)} Regulations^{within a period of two (2) months from the}