Madras High Court
R.Jegatheeswaran vs The Assistant Director Of Local ... on 29 July, 2021
W.P.No.28270 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.07.2021
CORAM:
THE HONOURABLE MR. JUSTICE M.S. RAMESH
W.P.No.28270 of 2019
R.Jegatheeswaran ... Petitioner
Vs.
1.The Assistant Director of Local Fund Audit,
Local Fund Audit Department,
Combined Finance Department Complex,
Nandanam, Chennai – 600 035.
2.The Commissioner of Municipal Administration,
75, Santhom Highway,
M.G.R.Nagar,
Chennai – 600 028.
3.The Commissioner,
Udumalaipet Municipality,
Tiruppur District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, praying to issue a Writ of Certiorarified Mandamus, to call for the
records, relating to the orders of the 1st respondent proceedings in
MPV(1)/28777/2013 dated 19-11-2013 and proceedings in
Na.Ka.No.3316/2013/B2 dated 01.04.2014 issued by the 3rd respondent
and proceeding in Ni.Mu.No.29275 dated 16-09-2014 issued by the 1st
respondent, consequently direct the respondents to refund the deducted
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W.P.No.28270 of 2019
amount Rs.38,343/- with interest of 12% to the petitioner and refix the
pension of the petitioner as per order of the 3rd respondent's proceeding in
Na.Ka.No.4461/09/C1 dated 07-08-2009 from July 2013 and pay all
consequential arrears expeditiously within a reasonable time.
For Petitioner : Mr.L.G.Sahadevan
for Mr.E.Sathiyaraj
For R1 & R2 : Mr.K.V.Sajeev Kumar
Government Counsel
For R3 : Mr.B.Anand
ORDER
By consent of both the parties, this writ petition is taken up for
final disposal.
2. The petitioner herein was appointed as Junior Assistant on
08.06.1979 and subsequently promoted as Assistant on 14.03.1988. On
his request, he was thereafter reverted to the post of Junior Assistant by
consent with effect from 18.02.1997. On completion of 30 years of
service, he was awarded 3% Incentive Increment/Super Grade on
07.08.2009. Consequently, the petitioner was receiving excess salaries.
In this background, the petitioner had retired from services on
30.06.2013.
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W.P.No.28270 of 2019
3. The first respondent herein, through the impugned order dated
19.11.2013, had stated that since the petitioner had relinquished his
promotion, he will not be entitled for the 3% Incentive Increment/Super
Grade and accordingly, directed the third respondent to revise the
petitioner's salary and recover a sum of Rs.38,343/-. The petitioner is
aggrieved against such recovery.
4. The learned counsel for the petitioner placed reliance on the
decision of the Hon'ble Supreme Court in the case of State of Punjab &
Others etc Vs Rafiq Masih (White Washer) etc, reported in 2015 (4)
SCC 334 and submitted that the recovery of excess salaries paid to the
retired employee is impermissible. On this ratio, the petitioner also relied
on the decision of the Madurai Bench of this Court in the case of
J.Jeyaraj Vs The Chief Engineer (Agriculture Engineering) and
others, passed in W.P(MD).No.6044 of 2016 dated 19.06.2019.
5. The learned Government Counsel appearing for the first and
second respondents submitted that since the petitioner had relinquished
his promotion, he ought not to have been paid the 3% Incentive
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W.P.No.28270 of 2019
Increment/Super Grade. It is on the basis of the objections of the Local
Fund Audit Department, the third respondent had recovered the excess
salaries paid.
6. The learned counsel for the third respondent adopted the
arguments of the learned Government Counsel and submitted that they
were acting only on the basis of the audit objection and therefore, the
recovery cannot be found fault with. It is also his submission that the
Local Fund Office, in the impugned order, had directed them to obtain a
letter of consent from the petitioner and accordingly, the petitioner had
also given his consent and therefore, the recovery cannot be found fault
with.
7. The Hon'ble Supreme Court, in White Washer Case (supra), had
categorically held that the recovery of excess salaries from the retired
employee is impermissible in law, particularly when the fault was on the
part of the employer.
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W.P.No.28270 of 2019
8. It is not in dispute that the excess salaries paid, pursuant to the
3% Incentive Increment period, was not due to the fault of the employee.
As such, recovery of excess amount cannot be permitted, in view of the
well-laid decision of the Hon'ble Supreme Court in White Washer's case.
9. The learned counsel for the respondents had submitted that the
petitioner had given a consent for recovery of such excess payments. This
aspect has been considered by the Hon'ble Division Bench of this Court in
the case of Tamil Nadu Civil Supplies Corporation Vs P.Ganesh Rao,
passed in W.A.No.207 of 2019 dated 24.01.2019, whereby, it was held
that such consent would not entitle the employer to recover the excess
payments, in view of the law laid down by the Hon'ble Supreme Court in
White Washer's case.
10. The decision of the Hon'ble Division Bench of this Court came
to be followed, among with other decisions, by a learned Single Judge of
this Court in the case of J.Jeyaraj (Supra) and the relevant portion of the
order reads as under:-
''4.The learned counsel for the petitioner submitted that
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W.P.No.28270 of 2019
no recovery can be made after retirement, that too after a
lapse of nine years from the date of retirement. In support of
his contention, the learned counsel relied upon a judgment in
the case of State of Punjab and others .vs. Rafiq Masih(White
Washer) and others reported in (2015) 4 Supreme Court
Cases, 334, which stipulates the mode of recovery. The learned
counsel also relied upon a judgment of a Division Bench of
this Court in the case of The Special Officer Vs. S.Kadiresan,
reported in (2014) 8 MLJ 385, wherein also it is held that no
recovery can be made after retirement. Therefore, following
the said decisions, the orders passed by the respondents dated
23.12.2015 and 05.02.2016 are liable to be quashed. The
learned counsel further added that the petitioner has no
objection for refixation of the monthly pension and he is
challenged only the recovery proceedings.
5.The learned counsel for the Petitioners also brought
the notice of this Court to the order of this Court made in
W.P(MD)No.2647 of 2014, dated 19.8.2016 in the case of
D.Susairaj v.s. The District Treasury Officer, Perambalur
and another, wherein, this Court at paragraph 10, has held as
follows:
''10.Even though it has been claimed, by the first
respondent, that the Petitioner had given his consent for
recovery, the said consent cannot be taken into serious
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W.P.No.28270 of 2019
consideration, as the Petitioner had raised objections
against the recovery, in his representations made to the
authority concerned. It is also clear from the decision of
the Supreme Court, made in State of Punjab and others
.vs. Rafiq Masih(White Washer) and others reported in
(2015) 4 SCC 334 that no recovery can be made from a
retired employee''
6.Such an issue was also considered by the Division
Bench of this Court in W.A(MD)No.638 of 2012, dated
12.3.2018, in the case of the Executive Engineer, Public
Works Department,(Machinery Sub-Division)Chennai and
another. vs. P.Karuppaiah, wherein, in para 4 it is held as
follows:
''4.In the instant case, the Writ Court noted that
without issuing notice to the respondent/Writ Petitioner,
recovery was sought to be effected and it is not
sustainable as it amounts to violation of principles of
natural justice. In such circumstances, the Court would
have remand the matter to the authorities for fresh
consideration giving them liberty to issue show cause
notice. We are to take a decision as to whether such
course has to be adopted in the present appeal. The
legal position as pointed out in the aforementioned
decision leads to a conclusion that the respondent/Writ
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W.P.No.28270 of 2019
Petitioner is liable to make good the excess payment
received by him, in the light of the undertaking.
However, in the peculiar facts and circumstances of the
case, the Petitioner having retired from service, the
recovery of the excess amount of around Rs.20,000/-
(Rupees twenty thousand only) shall not made.''
7.The Division Bench of this Court in Tamil Nadu Civil
Supplies Corporation, represented by its Managing Director,
No.12, Thambusamy Road, Kilpauk, Chennai-600 010 and
another. vs. P.Ganesha Rao and in yet another case in
W.A.No.207 of 2019, dated 24.1.2019, has passed an order on
the same lines, which affirms that there shall not be any
recovery and at paragraph Nos. 5 to 8, it is held as follows:
''5.The learned counsel for the appellants would
strenuously contend that the judgement of the
Honourable Supreme Court in Rafiq case(cited supra)
should not be applied, because the writ
Petitioner/respondent himself has consented for
recovery of the amount and once he has consented the
government was completely at liberty to withhold the
amount. He submitted that Rafiq's case (cited supra) will
not be applicable, where the retired employee consented
to the recovery of the amount, which has been paid in
excess to him.
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W.P.No.28270 of 2019
6.We are afraid that the said argument can hold
water. There is nothing in the said judgement, which
would state that if the employee consents, then the
employer is at liberty to withhold such amount. The law
laid down by the Honourable Supreme Court in Rafiq's
case (cited supra) categorically states there cannot be
any recovery from a retired employee. No amount of
consent by a retired employee would permit the
employer to withhold any amount. The law laid down by
the Honourable Supreme Court is binding on all.
7.As per Article 141 of the Constitution of India,
the law declared by the Honourable Supreme Court is
binding on all Courts within the territory of India. The
said judgement of the Rafiq's case (cited supra) is bind,
which categorically states that there can be no recovery
from a person, who has retired.
8.During the course of the arguments,
G.O.Ms.No.286, Finance(Pension) Department, dated
28.8.2018 was brought to our notice. A perusal of the
said Government Order would show that the
Government has implemented the above said decision
and issued a Government Order.''''
11. Thus, the very action on the part of the respondents in passing
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W.P.No.28270 of 2019
the impugned order of recovery, cannot be sustained, in view of the
aforesaid decision.
12. There is yet another aspect in this matter, wherein, it is claimed
that the 3% Incentive Increment/Super Grade was paid to the petitioner
by deducting his salaries from 2009 till his date of superannuation, i.e.,
on 30.06.2013. The impugned order came to be passed in the year 2013,
based on the audit objections alone. Admittedly, the respondents have
not chosen to issue any Show Cause Notice proposing such recovery.
13. It is settled proposition that, when such recovery is sought to be
made, particularly at this belated stage and the petitioner had also retired
from his services, the Principles of Natural Justice requires for issuance of
prior Show-Cause Notice, proposing such a recovery and calling for the
objections of the employee on the proposal. This proposition has been
reiterated in various decisions of the Hon'ble Supreme Court as well
various High Courts. In the absence of such a Show-Cause Notice, the
order of recovery cannot be sustained. On this ground also, the
impugned order cannot be sustained.
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W.P.No.28270 of 2019
14. For all the foregoing reasons, the impugned order dated
19.11.2013 passed by the first respondent is quashed. Consequently,
there shall be a direction to the third respondent to refund the amount of
Rs.38,343/- to the petitioner herein, and any other outstanding arrears,
arising in consequence to quashing of the impugned order, if any, and
accordingly re-fix the pension of the petitioner, within a period of eight
weeks from the date of receipt of a copy of this order.
15. This Writ Petition stands allowed accordingly. No costs.
29.07.2021
Index:Yes/No
Internet:Yes/No
Speaking Order/Non-speaking Order
arb
To
1.The Assistant Director of Local Fund Audit,
Local Fund Audit Department,
Combined Finance Department Complex,
Nandanam, Chennai – 600 035.
2.The Commissioner of Municipal Administration,
75, Santhom Highway,
M.G.R.Nagar,
Chennai – 600 028.
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W.P.No.28270 of 2019
3.The Commissioner,
Udumalaipet Municipality,
Tiruppur District.
M.S.RAMESH,J.
arb
W.P.No.28270 of 2019
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W.P.No.28270 of 2019
29.07.2021
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