Madras High Court
P.Murugaiah vs The Government Of Tamil Nadu on 2 August, 2022
W.P.No.30873 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :02.08.2022
CORAM :
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
Writ Petition No.30873 of 2014
&
M.P.Nos. 1 & 2 of 2014
P.Murugaiah ... Petitioner
-Vs-
1. The Government of Tamil Nadu,
Rep by its Principal Secretary Finance (Pay Cell) Department,
Fort St.George,
Chennai-600 009.
2. The Director,
Department of Agriculture,
Chepauk, Chennai-600 005.
3. The Director,
Department of Agriculture Marketing and Agri Business,
Guindy, Chennai-600 032 ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Certiorarified Mandamus, calling
for the records pertaining to the impugned letter bearing
No.Ve.A.Pa..1/154665/2013 dated 25.4.2014 issued by the second
respondent pursuant to the audit objection and quash the same and
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W.P.No.30873 of 2014
consequently direct to continue to pay the existing scale of pay as fixed
the respondents as per the fitment table 16 of the letter bearing
No.51082/pay cell/2010-1 dated 15.09.2010 issued by the first
respondent.
For Petitioner : Mrs.K.Shanthi for
Mr.U.Karunakaran
For Respondents : Mr. L.S.M.Hasan Fizal
Additional Government Pleader
ORDER
The revision of scale of pay and consequential recovery, are
sought to be quashed in the present Writ Petition.
2. The writ petitioner was appointed as Assistant Agriculture
Officer, subsequently promoted as Assistant Seed Officer. The petitioner
was further promoted to the post of Agriculture Officer and he retired
from service on 31.01.2011 on attaining the age of superannuation. The
pay of the writ petitioner was fixed in the post of Agriculture Officer.
Pursuant to the Tamil Nadu Revised Scales of Pay Rules, 2009, the
petitioner also exercised the post under the pay rules of the year 2009.
The petitioner was granted revision of scale of pay and subsequently
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W.P.No.30873 of 2014
there was an audit objection in respect of the pay fixation and
consequently, the recovery was imposed.
3. The learned counsel for the petitioner mainly contended that
there was no error in re-fixation of pay and therefore, the recovery is also
liable to be set aside. The fixation was done in accordance with the
Government Orders in force and the petitioner was receiving the salary
as per the pay fixation Rules of the year 2009 and thus, there is no
infirmity in respect of the fixation done during the relevant point of time.
4. The learned Additional Government Pleader appearing on
behalf of the respondents brought to the notice of this Court that no order
of recovery has been passed. The petitioner has filed the Writ Petition
challenging the very audit objection, which was not officially
communicated to the writ petitioner. The impugned order reveals that the
Deputy Director of Agriculture, informed about the audit objection and
the said copy of the proceedings were not even communicated to the writ
petitioner. Thus, the respondents have not issued any order of re-fixation
of recovery and therefore, the question of issuance of notice does not
arise at all. As far as the rectification of error in fixation of pay is
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W.P.No.30873 of 2014
concerned, the Authorities competent are empowered to correct the same
at any point of time. Recovery can be imposed if there is a
misrepresentation or in the event of an undertaking by the employee
concerned. If there is no misrepresentation, or an undertaking by the
employee, then the Courts have to consider as to whether the recovery
would result in extreme hardship, and in such circumstances, recovery
alone is to be quashed. However, the authorities competent are
empowered to correct the mistakes in the fixation of pay or revision of
scale of pay.
5. No employee is entitled for excess payment of salary or
otherwise, which would result in unjust gain. An employee is entitled to
receive the salary as applicable to the post in which he is working and in
accordance with the Pay Rules in force. In the event of excess payment
of salary, the Authorities competent are empowered to recover the same
by following the procedures as contemplated. In this context, the
Supreme Court also held that “unjust enrichment at no circumstances be
allowed”. Excess payment is to be always recovered, however certain
exceptions are culled out by the Supreme Court by stating that “in the
event of recovery from Class 4 employees, the same would result in
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W.P.No.30873 of 2014
hardship and therefore, the recovery should be avoided in respect of the
Class 4 employees”. Again, the Courts have held that, if the recovery
causes hardship to the pensioners and family pensioners, then also the
recovery is to be avoided. In all other cases, any excess payment made to
the employees had to be recovered, as such employees are not entitled for
the particular fixation or payment which was subsequently found as
excess.
6. In this context, two aspects have to be considered, at the time of
revision of scale of pay:-
(i) If an employee gives an undertaking that he will repay the amount, in
the event of any excess payment or
(ii) the revision of pay was granted pursuant to the misrepresentation or
otherwise,
then the authorities are competent to recover the excess payment by
issuing Show Cause Notice and by offering an opportunity of hearing to
the employee concerned to defend his case.
7. In the present case, the learned Additional Government Pleader
furnished the copy of the undertaking given by the writ petitioner at the
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W.P.No.30873 of 2014
time of revision of scale of pay done in the case of the writ petitioner
under the Tamil Nadu Revised Scales of Pay Rules, 2009. The said
undertaking reveals that “as hereby also undertake that any excess
payment that may be found to have been made as a result of incorrect
fixation of pay or any excess payment deducted in the light of
discrepancy notices, subsequently will be refunded by me to the
Government either by adjustment against future payments due to me or
otherwise without insisting for any prior notice “
8. Thus, at the time of re-fixation of pay, the petitioner has given a
clear undertaking that he will repay the excess payment if any deducted
in the light of discrepancy notice subsequently. In the present case, the
audit party raised an objection with reference to the fixation done in
favour of the writ petitioner and the audit objections were just placed
before the authorities. The petitioner has filed the writ petition
questioning the audit objections and admittedly, no order of re-fixation
or recovery has been issued and therefore, there is no cause for the
petitioner to file the present Writ Petition. Mere audit objection cannot be
a ground to file a Writ Petition. If at all the petitioner was able to secure a
copy of the audit objection, he should have filed an objection on the audit
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W.P.No.30873 of 2014
objections, instead of filing a Writ Petition by allowing the competent
authority to take a final decision and pass appropriate orders in the
manner known to law. Contrarily, the petitioner has chosen to file the
Writ Petition merely challenging the audit objection and thus, the Writ
Petition is not entertainable as no order has been passed revising the
scale of pay of the Writ Petitioner and the consequential recovery.
9. This Court has considered the principles regarding the recovery
of excess amount from the Government employees with reference to the
Judgment of the Hon'ble Supreme Court of India in W.P.(MD)Nos.19010
to 19018 of 2014, dated 20.06.2019 and the relevant paragraphs are
extracted hereunder:-
14.The Hon'ble Supreme Court of India in
the case of Chandi Prasad Uniyal and others v.
State of Uttarakhand and others reported in 2012
(8) SCC 417, the settled legal principles in the
matter of recovery as follows;
“His lordship Justice K.S.P.Radhakrishnan.J,
while speaking for the Bench considered the earlier
judgment of the Supreme Court including the
judgment of the Three Judge Bench of the Supreme
Court in Saiyad Abdul Kadip reported in 2009 (3)
SCC475 as well as Shyam Babu Verma's case
reported in (1994) 2 SCC 521 held as follows:
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W.P.No.30873 of 2014
14.We are concerned with the excess
payment of public money which is often described
as “tax payers money” which belongs neither to the
officers who have effected over-payment nor that of
the recipients. We fail to see why the concept of
fraud or misrepresentation is being brought in such
situations. Question to be asked is whether excess
money has been paid or not may be due to a bona
fide mistake. Possibly, effecting excess payment of
public money by Government officers, may be due
to various reasons like negligence, carelessness,
collusion, favouritism etc. because money in such
situation does not belong to the payer or the payee.
Situations may also arise where both the payer and
the payee are at fault, then the mistake is mutual.
Payments are being effected in many situations
without any authority of law and payments have
been received by the recipients also without any
authority of law. Any amount paid/received without
authority of law can always be recovered barring
few exceptions of extreme hardships but not as a
matter of right, in such situations
law implies an obligation on the payee to repay the
money, otherwise it would amount to unjust
enrichment.
15. We are, therefore, of the considered view
that except few instances pointed out in Syed Abdul
Qadir case and in Col. B.J. Akkara (retd.) case, the
excess payment made due to wrong/irregular pay
fixation can always be recovered.
16. Appellants in the appeal will not fall in
any of these exceptional categories, over and
above, there was a stipulation in the fixation order
that in the condition of irregular/wrong pay
fixation, the institution in which the appellants were
working would be responsible for recovery of the
amount received in excess from the salary/pension.
In such circumstances, we find no reason to
interfere with the judgment of the High Court.
However, we order the excess payment made be
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W.P.No.30873 of 2014
recovered from the appellant’s salary in twelve
equal monthly installments starting from October
2012.”
15.Subsequently, the Three Judge Bench of
the Hon'ble Supreme Court of India in the case of
State of Panjab and others etc Vs. Rafiq Masih
(White Washer) reported in (2014) 8 SCC 883
again reiterated the principles laid down in the case
of Chandi Prasad Uniyal and others v. State of
Uttarakhand cited supra, para -8 of the judgment of
the Three Judges Bench reiterates the legal
principles laid down in Chandi Prasad Uniyal case
as follows:-
“8.We are of the considered view, after
going through various judgments cited at the bar,
that this court has not laid down any principle of
law that only if there is misrepresentation or fraud
on the part of the recipients of the money in getting
the excess pay, the amount paid due to
irregular/wrong fixation of pay be recovered.”
16.During the year 2015, once again the Two
Judges Bench of the Hon'ble Supreme Court in the
case of State of Punjab v. Rafiq Masih reported in
(2015) 4 Supreme Court Cases 334 in paragraph
No.18 of the judgment is relevant and the same is
extracted hereunder:-
“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, 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).
(ii)Recovery from the retired employees, or
the employees who are due to retire within one
year, of the order of recovery.
(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.
(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 iniquitous or harsh or
arbitrary to such an extent, as would far outweigh
the equitable balance of the employer's right to
recover.”
17.As far as 2015 case of the Supreme Court
is concerned, the principles laid down in Chandi
Prasad Uniyal case as well as in Rafiq Masih case
by the Three Judges Bench of the Supreme Court
was reiterated and only exceptions were drawn by
stating that in the event of no misrepresentation on
the part of the employees belonging to Group III
and IV. The excess amount if at all any paid need
not be recovered. However, the fixation can be
corrected. Thus, 2015 judgment clarifies that only
on certain circumstances in respect of certain class
of employees and also the retired employees, the
excess amount paid cannot be recovered and not in
all other cases. Thus, the legal principles settled by
the Chandi Prasad Uniyal case and Rafiq case
decided by the Three Judges Bench of Supreme
Court holds the field of recover and that is to be
followed as a binding precedent.
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W.P.No.30873 of 2014
18.Even recently, the Two Judges Bench of
the Hon'ble Supreme Court in the case of High
Court of Punjab and Haryana v. Jagdev Singh
reported in AIR 2016 SC 3523 reiterated the
principles followed by the earlier judgments of the
Apex Court and accepted the exception cared out in
2015 Rafiq Misih case. Thus, the legal position in
the matter of recovery is now settled and
accordingly the Government Servants cannot be
allowed to enjoy any unjust enrichment of tax
payers money.
19.There is a growing trend in the State of
Tamil Nadu that the Sub-ordinate officials at the
District level and in Panchayat level such
Government Orders are some time misinterpret to
the advantage of the employees and arrears of
amount are drawn from the Government Treasuries.
In other words, there are large scale collusions
amongst to the District level authorities with the
employees for the purpose of drawing these pay
commission arrears and thereby causing financial
loss to the State exchequer for the purpose of
gaining unjust enrichment in favour of the
employees. These aspects sought to be clearly
considered by the Higher Authorities of the
Government and all appropriate actions are to be
initiated against in all such cases.”
10. In the present case, the petitioner has given a clear undertaking
while granting revision of scale of pay under the Tamil Nadu Revised
Scales of Pay Rules, 2009. The petitioner was holding the post of
Agriculture Officer, which is classified as Group 2 category post and
therefore, he cannot seek the exemption which would be applicable to
Group 4 employees. When the petitioner was working in Group 2
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W.P.No.30873 of 2014
category and given an undertaking that he will repay the excess payment
if any traced out subsequent to the revision of scale of pay, he is liable to
repay the excess amount. However, no order has been passed in the
present case and the petitioner had approached even before the passing
final orders by the competent authorities revising the scale of pay based
on the audit objection. Thus, the writ petition itself to be considered as
premature.
11. However, the writ petition is pending for about 7 years.
Therefore, in the interest of justice, this court is inclined to pass the
following orders :
(i) Writ petitioner is at liberty to submit his explanation based on
the audit objection which is available with the petitioner, within a period
of three weeks from the date of receipt of a copy of this order.
(ii) On receipt of the explanation, if any, submitted by the writ
petitioner within the said period, the respondents shall consider the
issues after verifying the correctness of the scale of pay and pass
appropriate orders on merits and in accordance with law within a period
of 12 weeks thereafter.
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W.P.No.30873 of 2014
12. With the above directions, this Writ Petition stands disposed
of. No costs. Consequently, connected Miscellaneous Petitions are also
closed
02.08.2022
sha
To
1. The Principal Secretary Finance (Pay Cell) Department,
Government of Tamil Nadu,
Fort St.George,
Chennai-600 009.
2. The Director,
Department of Agriculture,
Chepauk, Chennai-600 005.
3. The Director,
Department of Agriculture Marketing and Agri Business,
Guindy, Chennai-600 032
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W.P.No.30873 of 2014
S.M.SUBRAMANIAM, J.
sha
W.P.No.30873 of 2014
&
M.P.Nos. 1 & 2 of 2014
02.08.2022
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