Madras High Court
A.Iyadurai vs The State Of Tamil Nadu on 6 October, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.10.2021
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.(MD)Nos.8691 of 2016 and 1513 of 2017
and
W.M.P.(MD)Nos.6940 and 6941 of 2016, 1230 and 9416 of 2017
W.P.(MD)No.8691 of 2016:-
A.Iyadurai ... Petitioner
vs.
1.The State of Tamil Nadu,
represented by its Principal Secretary to Government,
Cooperation, Food & Consumer Production Department,
Secretariat, Chennai - 9.
2.The Registrar of Co-Operative Societies,
No.170, Periyar E.V.R. High Road,
Kelpauk, Chennai - 10.
3.The Personal Assistant to Registrar and Personnel Officer,
Office of the Registrar of Cooperative Societies,
No.170, Periyar E.V.R. High Road,
Kelpauk, Chennai - 10.
4.The Joint Registrar of Cooperative Societies
(Finance & Banking),
No.170, Periyar E.V.R. High Road,
Kelpauk, Chennai – 10.
1/15
https://www.mhc.tn.gov.in/judis/
5.The Accountant General (A&E),
Pension 27 Section,
Office of the Principal Accountant General (A&E),
No.61, Anna Salai, Thenapet,
Chennai-600 018. ... Respondents
PRAYER:-: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorari, to call for the records relating to
the impugned order passed by the first respondent in his proceedings in
Letter No.15296/CL2/2015 3, dated 03.02.2016 and the consequential
revised and re-fixation order issued by the third respondent in his
proceedings in Rc.No1033/2013/OE1 dated 24.03.2016 and the
consequential recovery order passed by the fourth respondent in his
proceedings in Rc.No.98452/2014/P1 dated 11.04.2016 and to quash the
same as illegal.
For Petitioner : Mr.C.Venkatesh Kumar
for M/s.Ajmal Associates
For R-1 to R-4 : Mr.M.Linga Durai
Government Advocate
For R-5 :Mr.P.Gunasekaran
W.P.(MD)No.1513 of 2017:-
A.Iyadurai ... Petitioner
vs.
1.The Registrar of Co-Operative Societies,
No.170, Periyar E.V.R. High Road,
Kelpauk, Chennai - 10.
2/15
https://www.mhc.tn.gov.in/judis/
2.The Financial Advisor/Chief Accounts Officer,
Office of the Registrar of Co-Operative Societies,
No.170, Periyar E.V.R. High Road,
Kelpauk, Chennai - 10.
3.The Accountant General (A&E),
Pension 27 Section,
Office of Principal Accountant General (A&E),
No.61, Anna Salai, Thenapet,
Chennai-600 018. ... Respondents
PRAYER:-: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorarified Mandamus, to call for the
records relating to the impugned order passed by the first respondent in
his proceedings in Na.Ka.No.42564/2013/Ka.4 dated 22.11.2016 and to
quash the same as illegal and consequently to direct the respondents to
release the Death Cum Retirement Gratuity (DCRG) a sum of Rs.
3,30,867/- with interest of 12% in terms of Rule 45-A of the Tamil Nadu
Pension Rules, 1978 within the period that may be stipulated by this
Court.
For Petitioner : Mr.C.Venkatesh Kumar
for M/s.Ajmal Associates
For R-1 and R-2 : Mr.M.Linga Durai
Government Advocate
For R-3 :Mr.P.Gunasekaran
*****
https://www.mhc.tn.gov.in/judis/
COMMON ORDER
W.P(MD)No.8691 of 2016 is filed for issuance of a Writ of
Certiorari, to quash the impugned order vide letter, dated 03.02.2016, and
the consequential revised and re-fixation order issued by the third
respondent, dated 24.03.2016, and the consequential order of recovery
passed by the fourth respondent in the proceedings, dated 11.04.2016.
2.W.P(MD)No.1513 of 2017 is filed for issuance of a Writ of
Certiorarified Mandamus, to quash the impugned order passed by the
first respondent, dated 22.11.2016, whereby, Death Cum Retirement
Gratuity (DCRG) was withheld on account of the pendency of the first
Writ Petition in W.P.(MD)No.8691 of 2016. The prayer is also for a
direction to release the Death Cum Retirement Gratuity (DCRG), namely,
a sum of Rs.3,30,867/- with interest at 12% in terms of Rule 45-A of the
Tamil Nadu Pension Rules, 1978, within a period that may be stipulated
by this Court.
3.Heard Mr.C.Venkatesh Kumar, learned Counsel appearing for the
https://www.mhc.tn.gov.in/judis/
petitioner and Mr.M.Linga Durai, learned Government Advocate
appearing for the State and Mr.P.Gunasekaran, learned Counsel for the 5th
and 3rd respondent in both Writ Petition respectively.
4.Since the issues involved in these Writ Petitions are one and the
same, these Writ Petitions are taken up together and disposed of by this
common order.
5.Brief facts, that are necessary for the purpose of disposal of these
Writ Petitions, are as follows:
5.1.The petitioner was originally appointed as Junior Assistant in
the office of Deputy Registrar of Cooperative Society, Pollachi, by a
process of recruitment through Tamil Nadu Public Service Commission
and his pay was fixed at Rs.9,860/- in the scale of pay of Rs.
5,200-20,200+Grade Pay-2,000/- in the cadre of Junior Assistant with
effect from 01.01.2006. It is stated that the petitioner's pay was fixed at
Rs.10,790/- with effect from 19.05.2007 in the cadre of Selection Grade
Junior Assistant in the same scale of pay. The petitioner was later
appointed by transfer, as Junior Inspector of Cooperative Societies, on
https://www.mhc.tn.gov.in/judis/
09.04.2008. The petitioner was also promoted, as Senior Inspector of
Cooperative Societies, on 13.06.2011 and he retired on 31.01.2015 after
attaining the age of superannuation.
5.2.By the order impugned in W.P.(MD)No.8691 of 2016, a
clarification was issued by the Government, by which the petitioner's pay
during which he served as Junior Assistant was grossly reduced.
Following the clarification issued by the Government, the order of
recovery was passed by the second respondent. Again, there was a
direction to the Accountant General by the Joint Registrar of Cooperative
Societies to calculate the pensionary benefits based on the revised pay
scale. Challenging the order of clarification issued by the first
respondent and the consequential order of recovery and other
proceedings, the first Writ Petition in W.P.(MD)No.8691 of 2016 is filed.
5.3.During the pendency of W.P.(MD)No.8691 of 2016, the first
respondent in W.P.(MD)No.1513 of 2017, namely, the Registrar of
Cooperative Societies considered the petitioner's representation for Death
Cum Retirement Gratuity (DCRG) and rejected the request of the
https://www.mhc.tn.gov.in/judis/
petitioner for DCRG on the ground that the Writ Petition filed by the
petitioner challenging the order of re-fixation is pending and that the
petitioner's request for disbursement of DCRG will be considered after
the disposal of the first Writ Petition. Challenging the same, the second
Writ Petition in W.P.(MD)No.1513 of 2017 is filed with the
consequential prayer.
6.The learned Counsel for the petitioner raised several grounds
challenging the impugned orders, particularly, with reference to the
clarificatory order issued earlier on the basis of which the petitioner's
salary was then fixed. The learned Counsel for the petitioner also
submitted that no opportunity was given to the petitioner before passing
the order of clarification or before issuing a direction for recovery.
7.With reference to the consequence of the impugned orders, the
learned Counsel for the petitioner submitted that the recovery
proceedings cannot stand, as the same was passed without giving a
minimum opportunity of hearing to the petitioner. Admittedly, no show
cause notice was issued to the petitioner. The learned Counsel for the
https://www.mhc.tn.gov.in/judis/
petitioner submitted that the recovery order passed by the respondents is
not only violative of principles of natural justice, but also contrary to the
several precedents of Honourable Supreme Court.
8.The Honourable Supreme Court in the case of State of Punjab
and others vs Rafiq Masih and others, reported in (2015) 4 SCC 334,
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) Recovery from employees belonging to Class-III and
Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who
are due to retire within one year, of the order of recovery.
(iii) 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.
(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.
(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.”
https://www.mhc.tn.gov.in/judis/
9.Referring to the above judgment, the learned Counsel for the
petitioner submitted that the petitioner being belong to Class-3 (Group C)
and retired, there cannot be any recovery. Following the judgment of the
Honourable Supreme Court cited above, this Court has rendered several
judgments.
10.The learned Counsel for the petitioner submitted that the
recovery order and the order re-fixing the petitioner's pay may be
quashed for being violative of principles of natural justice and that the
matter may be remitted for fresh consideration to pass orders regarding
re-fixation of petitioner's pay and monetary benefits after giving
opportunity of being heard to the petitioner to putforth his objection in
full before the third respondent.
11.The learned Government Advocate produced before this Court,
a judgment of Honourable Supreme Court in the case of High Court of
Punjab and Haryana and others vs Jagdev Singh reported in (2016) 14
SCC 267. After referring to the earlier judgment of the Honourable
https://www.mhc.tn.gov.in/judis/
Supreme Court in case of State of Punjab vs Rafiq Msih, the Honourable
Supreme Court pointed out that the proposition of earlier judgment
regarding recovery from retired employees cannot be applied to a
situation, where the Officer, to whom the payment was made in the first
instance, was clearly put on notice that any payment found to have made
in excess can be recovered in future. The Officer in that case furnished
an undertaking while opting for the revised pay scale. That judgment has
no application in the present case.
12.This Court is unable to consider the issue relating to re-fixation
in the absence of several orders and clarifications issued by the
Government from time to time. In the absence of materials, that are
relevant to decide, as to how the petitioner's pay should be refixed after
this length of time, this Court is of the view that it could be appropriate
to remit the matter to the third respondent to pass appropriate orders.
Since the recovery is based on the clarification issued by the first
respondent, particularly, with reference to the petitioner, the same is
certainly in violation of principles of natural justice, as no show cause
notice or opportunity was given to the petitioner, who is likely to be
https://www.mhc.tn.gov.in/judis/
affected by such re-fixation.
13.The clarification order was based on a letter of Assistant
Registrar, citing the anomaly in the pay of the petitioner. Hence, this
Court is fully convinced that the impugned orders in W.P.(MD)No.8691
of 2016 are liable to be set aside on the short ground that no opportunity
was given to the petitioner to raise his objections before passing the
orders. Hence, the impugned order passed by the first respondent, dated
03.02.2016 and the consequential revision or re-fixation order issued by
the third respondent by his proceedings, dated 24.03.2016 are quashed.
The recovery order passed by the fourth respondent dated 11.04.2016 is
also quashed, as a consequence. However, the first respondent in W.P.
(MD)No.8691 of 2016 is permitted to pass an order afresh after hearing
the petitioner and giving an opportunity to putforth his objection. In case
a clarification, which may result in placing the petitioner in a scale to his
disadvantage, the first respondent shall issue a show cause notice and
may pass appropriate orders after hearing the petitioner. In case a fresh
clarificatory order is issued with reference to the petitioner's pay, it is
open to the third respondent to refix the pay and proceed accordingly.
https://www.mhc.tn.gov.in/judis/
14.Though the learned Government Advocate relied upon an
undertaking stated to have been submitted by the petitioner at the time of
retirement, the undertaking, which was given by the petitioner is usual
given at the time of submitting pension proposal and the same will not
have any relevance in the present context. The respondents are permitted
to proceed for recovery in case revision or re-fixation of pay of petitioner
warrants such recovery in future from the pension.
15.Regarding W.P.(MD)No.1513 of 2017, this Court is of the view
that the impugned order withholding the entire DCRG is illegal and
arbitrary. Withholding of DCRG is due to the pendency of W.P.(MD)No.
8691 of 2016. Even if the re-fixation, as per the impugned orders in the
first Writ Petition, is to be confirmed by this Court, the petitioner will not
loose the entire DCRG, as the re-fixation is for a limited period and the
difference will not be much, so as to deny the entire DCRG to the
petitioner. It is also open to the respondents to deduct any portion of
amount payable by way of pension, in case, the amount, that is now
claimed by the petitioner should be reduced, as per the re-fixation of his
https://www.mhc.tn.gov.in/judis/
pay in future. Hence, the impugned order of first respondent, dated
22.11.2016 is quashed. Consequently, the respondents are directed to
release the Death Cum Retirement Gratuity (DCRG) with interest in
terms of Section 45-A of Tamil Nadu Pension Rules, 1978, within a
period of eight weeks from the date of receipt of a copy of this order. It
is open to the respondents to deduct or recover the amount, in case, the
quantum of DCRG is reduced on account of re-fixation of pay of
petitioner, as per the direction issued by this Court in W.P.(MD)No.8691
of 2016.
16.Accordingly, these Writ Petitions are disposed of. No costs.
Consequently, connected miscellaneous petitions are closed.
Index :Yes / No 06.10.2021
Internet :Yes
tmg/cmr
https://www.mhc.tn.gov.in/judis/
To
1.The Principal Secretary to Government,
The State of Tamil Nadu,
Cooperation, Food & Consumer Production Department,
Secretariat, Chennai - 9.
2.The Registrar of Co-Operative Societies,
No.170, Periyar E.V.R. High Road,
Kelpauk, Chennai - 10.
3.The Personal Assistant to Registrar and Personnel Officer,
Office of the Registrar of Cooperative Societies,
No.170, Periyar E.V.R. High Road,
Kelpauk, Chennai - 10.06.2013
4.The Joint Registrar of Cooperative Societies
(Finance & Banking),
No.170, Periyar E.V.R. High Road,
Kelpauk, Chennai - 10.
https://www.mhc.tn.gov.in/judis/
S.S.SUNDAR, J.
tmg/cmr
W.P.(MD)Nos.8691 of 2016 and 1513 of 2017
06.10.2021
https://www.mhc.tn.gov.in/judis/
