Madras High Court
P.Mahamani … vs State Of Tamil Nadu on 3 September, 2021
W.P.Nos.38982 and 38983 of 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.09.2021
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P. Nos.38982 & 38983 of 2002
P.Mahamani …Petitioner in both WPs
Vs
1.State of Tamil Nadu,
rep. by the Secretary to Government,
Industries Department,
Fort St. George, Chennai – 600 009. ... 1st respondent in W.P. No.38982 of
... 2nd respondent in W.P. No.38983 of 2002
2.State of Tamil Nadu,
rep. by the Additional Secretary
to Government,
Finance (BPE ) Department,
Fort St. George, Chennai – 600 009.
... 1st respondent in W.P. No.38983 of 2002
3.Tamil Nadu Magnesite Limited
(A Govt of Tamil Nadu undertaking),
rep. by its Managing Director,
5/53, Omalur Main Road,
Salem – 636 302.
... 2nd respondent in W.P. No.38982 of 2002
...3rd respondent in W.P. No.38983 of 2002
PRAYER in W.P. No.38982 of 2002: Writ Petition filed under Article 226 of the
Constitution of India praying for the issuance of Writ of Certiorarified Mandamus
to call for the records relating to the Letter No.22525/MME.2/98-3, Industries
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W.P.Nos.38982 and 38983 of 2002
Department, dated 12.02.1999 on the file of the 1st respondent and the
consequential orders bearing Nos.Ref:1(2)/P&A/1103/99-2000, dated 07.05.1999
and Ref:1(2)/P & A/1302/99-2000, dated 13.05.1999 on the file of the 2nd
respondent and to quash the same and consequently, to direct the respondents to
restore the Order bearing Ref:1(2)/9107/89-90, dated 27.09.1989, refund the
amount deducted from the Petitioner's salary, fix his revised Pay Scale as per the
6th Pay Commission Report at Rs.16,400-450-20,000/- w.e.f. 01.01.1996 and pay
all the benefits arising therefrom to him.
PRAYER in W.P. No.38983 of 2002: Writ Petition filed under Article 226 of the
Constitution of India praying for the issuance of Writ of Certiorarified Mandamus
to call for the records relating to the order bearing G.O.Ms.No.200, Finance (BPE)
Department, dated 06.05.1998 on the file of the 1st respondent and to quash Clause
-(vii) of the said G.O. and consequently, direct the respondents to revise and fix
petitioners Pay scale in the post of Secretary-cum-General Manager (Finance) in
the 3rd respondent as recommended in the 6th pay Commission Report at
Rs.16,400-450-20,000/- and pay all the monetary benefits arising therefrom.
For Petitioner : Mr.TM.Naveen in both WPs
For Respondents : Mr.C.Selvaraj,
Government Advocate for R1 & R2
in both Wps.
Ms.Jasmine Padma for
Ms.K.Bhuvaneswari for R3 in both WPs
COMMON ORDER
These two Writ Petitions have been filed by an employee who had joined
the services of the third respondent, a Government of Tamil Nadu undertaking,
i.e., Tamil Nadu Magnesite Limited (R3) in W.P. No.38983 of 2002. On
05.03.1980, the petitioner was appointed as a Financial Controller–cum–Secretary
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W.P.Nos.38982 and 38983 of 2002
in the pay scale of Rs.1600-75-1750-100-2250 along with usual allowances. The
petitioner joined duty on 02.05.1980 and has been employed therein till his
resignation in the year 2003.
2. The challenge in W.P.No.38982 of 2002 is to orders passed by the first
respondent dated 12.02.1999, 07.05.1999 and 13.05.1999, restricting the scale of
pay with effect from 01.07.1997 under order dated 12.02.1999. The petitioner who
was entitled to an enhancement of pay in the scale of 5100-150-5700 was
relegated, by way of the aforesaid order to the scale of pay 4500-150-5700 with
effect from 01.06.1988. Simultaneous therewith, an order was passed directing the
recovery of amounts allegedly paid in excess, in instalments. Consequent upon the
revision of scale of pay with effect from 01.06.1988 revisions were made to the
scales of pay fixed for subsequent periods as well.
3. In W.P.No.38983 of 2002, the petitioner challenges G.O.Ms.No.200
(BPE) Department, dated 06.05.1998 (G.O./G.O. in question), specifically Clause
7 thereof. The Writ Petition is filed on the basis that it is Clause 7 of the aforesaid
G.O., on account of which the scale of pay in the petitioner's case was refixed on
12.02.1999. A perusal of the impugned orders however, do not reflect anywhere
that it is the aforesaid G.O. that is the basis of the pay refixation though there a
passing reference to the Vth Pay Commission recommendations in order dated
12.02.1999. Neither the pleadings anywhere contain any explanation nor
reasoning for the re-fixation effected under order dated 12.02.1999.
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W.P.Nos.38982 and 38983 of 2002
4. Be that as it may, detailed submissions have been heard in regard to the
challenge to the G.O., specifically Clause 7 thereof, and I recapitulate the same
briefly. The petitioner challenges the re-fixation on the following grounds:
i) That the impugned orders of re-fixation have been passed without prior
opportunity of hearing which vitiate the same.
ii) The re-fixation has the effect of reducing the rank as well as the
monetary benefits of the petitioner and are contrary to the terms of his service,
particularly since there have been no allegations on charges laid against him in
regard to the rendition of the services.
iii) Impugned Clause 7 of the G.O. contains, as a pre-requisite, the
requirement of a finding that the pay drawn by the employee in question is equal
to the pay drawn by the Head of the Department, in this case the Managing
Director.
iv) There is no such finding in the impugned order or in any of the
communications exchanged and as such the pre-requisite conditional upon which
Clause 7 of the G.O. would stand attracted to the petitioner's case, is not satisfied.
v) The petitioner is a permanent employee of R3 company, whereas the
Managing Director is drawn from among the officers of the Indian Administrative
Service (IAS) and vary in rank.
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W.P.Nos.38982 and 38983 of 2002
vi) The scales of pay of the Managing Director would depend upon the
Rules that govern the pay of officers of the IAS whereas, the scale of pay of the
petitioner is, and cannot be subject to the same fluctuations.
(vii) Lastly, and alternately, if at all the re-fixation were warranted and
found to be in order, it could only have been given effect to prospectively and not
retrospectively.
5. No response of any sort whatsoever has been put forth from the
respondent in regard to the above contentions. The counter filed by the first and
second respondents, being the State of Tamil Nadu represented the Secretary and
by Additional Secretary (R1 and R2) are totally silent in regard to the aforesaid
averments. The counter merely repeats the contents of Clause 7 of the G.O and in
fact, and as I have pointed earlier, reference to Clause 7 is itself unnecessary in the
circumstances of this case.
6. The Hon’ble Supreme Court, in the case of Asha V. Pt.B.D.Sharma
University of Health Sciences and others ((2012) 7 SCC 389) dealing with the law
of pleadings reiterates that an averment made by a party to litigation is expected to
be specifically denied by the replying party and if there were no such specific
denial, then such averment is deemed to stand admitted.
7. In the present matter, it is the fulcrum of the petitioner’s case that clause
7 of the G.O. in question shall not be applicable to his case and, assuming that,
that is the basis upon which the impugned orders have been passed and recovery
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W.P.Nos.38982 and 38983 of 2002
effected, it was incumbent upon the respondents to justify both the invocation of
the G.O. in question and the specific clause thereunder. Specifically, the argument
that the pre-condition set out in clause 7 of the G.O. has not been satisfied, should
have been met. The counter filed in the present case is bland and repetitive to say
the least. There is absolutely no substance therein to explain the stand of the State
as to why the G.O in question would apply to the petitioner or whether at all it
would. Thus, in view of this glaring omission on the part of the respondents to
make out a specific case in their defence, following the ratio of the judgment
aforesaid, I would hold that this G.O. is not material to the facts and circumstances
of the petitioner’s case. Assuming that it is the G.O. in question that has been
pressed into service, the pre-condition set out in clause 7 thereof has admittedly
not been satisfied nor any of the other arguments been met.
8. I thus proceed to test the impugned orders upon the strength, and in the
light of the averments that they contain. The impugned orders are extracted below
in the interests of clarity and completion of narration:
Letter No.22525/MME2/98-3, Industries Department, Fort St. George,
Chennai-9.
Dated 12.2.1999
From
Thiru M.S.Srinivasan, I.A.S.,
Secretary to Government
To
The Managing Director,
Tamilnadu Magnesite Limited,
5/53 Omalur Main Road,
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W.P.Nos.38982 and 38983 of 2002
Jagir Ammapalayam, Salem -636 302
Sub: Tamilnadu Magnesite Limited - Revision of scale of pay of certain
officers - Revision of the scale of pay of the post of Secretary-cum-General
Manager (Finance) - Regarding.
Ref:1. From the Joint Managing Director, TANMAG, Letter
No.1(2)/5102/94-95, dt.15.8.1994
2. Your letter No.3(9)/4579/98-99, dt.29.8.1988 and 17.12.1998
I am directed to invite attention to the references cited and to state that the
Government have among others examined the question of fixing the scale of
pay for the post of Secretary-cum-General Manager (Finance), Tamilnadu
Magnesite Limited (Vth Pay Commission), and to inform that your proposal
for allowing the scale of pay of Rs.5100-150-5700 for the post of Secretary-
cum-General Manager (Finance) has not been accepted by Government. The
Government, accordingly, direct that the scale of pay for the post of
Secretary-cum-General Manager (Finance) Tamilnadu Magnesite Limited be
fixed in the scale of pay of Rs.4500-150-5700 with effect from 1,6.1988 and
the excess payment paid to the individual may be recovered in easy
instalments.
2. I am also directed to state that the orders regarding the revised scale of
pay to be allowed for the post of Secretary-cum-General Manager (Finance)
with effect from 1.1.1996 with reference to the scale of pay fixed viz 4500-
150-5700 will be issued separately.
Yours faithfully,
for Secretary to Government
9. Letter dated 07.05.1999 is addressed to the petitioner by R3 and states
thus:
Ref: Govt.Lr.No. 22525/MME2/98-5, dt. 30.4.99
The Management is pleased to inform that your scale of pay has been revised
as Rs.12000-375-16500 with an initial basic of Rs. 13,875/- p.m. w.e.f. 1.1.96
and revised as Rs.15000-400-18600 with an initial basic of Ra.15,000/-p.m.
w.e.f. 10.12.96. However, monetary benefit on the revised pay scale will be
paid w.e.f. 1.7.97 only.
The other terms and conditions of your appointment order shall remain
unchanged.
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W.P.Nos.38982 and 38983 of 2002
M.D.
10. Subsequent letter dated 13.05.1999 is from R3 and puts the petitioner to
notice about the proposed recovery to be effected in the following terms:
Ref: 1(2)/P&A/307/99-300
Sub: Review of revision of scale of pay – recovery of excess payment
made w.e.f. 1.6.88 – re.
Ref:1.Govt.Lr.No 22525/MME.2/98-5, Ind. Dept., dt, 30.4.99
2. Our Letter No.1(2)/P&A/1103/99-2000,dt.7.5 99
In continuation of the above, Govt. vide letter first cited in the reference
directed that the excess payment made to Thiru P. Mahamani due to the
higher scale of pay allowed at Rs. 5100-5700 from 1.6.88 be recovered by
way of adjustment in the arrear payment from 1.7.97.
Clarification has been sought from Govt. regarding the stage at which the
basic pay of Thiru P.Mahamani has to be fixed in the scale of pay of
Rs.4500-150-5700 w.e.f. 1.6.88. On clarification from the Govt., recovery
of excess payment already made and also the payment of arrears will be
decided.
MANAGING DIRECTOR
11. Passing reference is made to the Report of the V pay Commission in
rejecting the proposal of R3 for fixation of salary at the scale of Rs.5100-150-
5700. The State further states that the salary is to be pegged at the scale of
Rs.4500-150-5700, with effect from 01.06.1988 and that excess paid for the past
period is liable to be recovered from the petitioner.
12. The proposal of R3 stood rejected vide impugned order dated
12.02.1999, though without any reference to the G.O in question or Clause 7
thereof. Needless to say, the impugned orders have had a debilitating effect upon
the petitioner and proceed to retrospectively snatch benefits hitherto paid, towards
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W.P.Nos.38982 and 38983 of 2002
services already rendered. Learned counsel for the petitioner confirms that full
recovery has been effected towards the salary allegedly paid in excess from the
years 1988 till 2003 when the petitioner resigned.
13. Even today, despite repeated probing, I am unable to cull out any
reasoning or response, let alone an effective defence to justify the passing of the
impugned orders, that too without hearing the petitioner. In light of the above
discussion, the impugned orders have no legs to stand and are quashed.
14. This is an appropriate matter for the levy of costs upon the state for (i)
having inflicted non-speaking orders upon the employee (ii) having done away
with the principles of natural justice in toto (iii) for effecting recovery of salaries
paid from various periods between 1999 to 2003, till date, thus depriving the
petitioner of substantial capital.
15. The amounts recovered as excess payments shall be re-paid to the
petitioner within a period of six (6) weeks from today and as a matter of
compensation for the hardship caused as well as the loss of capital for the last
more than 17 years, let the petitioner be paid a sum of Rs.1,00,000/- as
compensation along with the amount to be refunded as aforesaid.
16. W.P.Nos.38982 of 2002 is allowed and the orders impugned therein are
quashed. As regards the challenge to G.O.200 (BPE) Department, dated
06.05.1998 in W.P. No.38983 of 2002, I have noted at paragraph 4(iv) aforesaid
that the pre-condition contained at Clause 7 of the G.O. thereof has not been
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W.P.Nos.38982 and 38983 of 2002
satisfied in the case of the petitioner and at paragraphs 6 and 7 above that there is
no negation of the facts as set forth by the petitioner, citing the judgement of the
Supreme Court in the case of Asha (Supra) as well. Thus, the aforesaid G.O has no
application to the petitioner and the prayer sought need not be considered. This
Writ petition is closed in light of the aforesaid observation. No costs.
03.09.2021
Index : Yes/No
Speaking Order/Non speaking Order
Sl
To
1.State of Tamil Nadu,
rep. by the Secretary to Government,
Industries Department,
Fort St. George, Chennai – 600 009.
2.State of Tamil Nadu,
rep. by the Additional Secretary to Government,
Finance (BPE ) Department,
Fort St. George, Chennai – 600 009.
3.Tamil Nadu Magnesite Limited
(A Govt of Tamil Nadu undertaking),
rep. by its Managing Director,
5/53, Omalur Main Road, Salem – 636 302.
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W.P.Nos.38982 and 38983 of 2002
Dr.ANITA SUMANTH,J.
Sl
W.P. Nos.38982 & 38983 of 2002
03.09.2021
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