Madras High Court
M.Pavalakannan vs The State Of Tamilnadu on 6 January, 2022
W.P(MD)No.7435 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.01.2022
CORAM :
THE HON`BLE MR.JUSTICE B.PUGALENDHI
W.P(MD) No.7435 of 2020 and
WMP(MD) Nos.6889 to 6891 of 2020
M.Pavalakannan Petitioner
Vs.
1.The State of Tamilnadu,
Rep by its Secretary,
Tamil Development Department,
St.George Fort,
Chennai – 9.
2.The Vice Chancellor,
Tamil University,
Thanjavur,
Thanjavur District.
3.Tamil University,
Rep by its Registrar,
Tamil University,
Thanjavur,
Thanjavur District.
4.The Assistant Director,
Local Fund Audit,
Tamil University,
Thanjavur,
Thanjavur District. Respondents
1/9
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W.P(MD)No.7435 of 2020
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, praying for issuance of a Writ of Certiorarified Mandamus, calling
for the records relating to the impugned orders issued by the third
respondent in his proceedings in e.f.vz;.M3/1087/2020, dated
03.06.2020 and consequential impugned recovery order issued by the
third respondent in his proceedings in e.f.vz;.M3/1087/2020, dated
23.06.2020 and quash the same as illegal and consequentially to direct
the respondents to pay the retirement benefits by taking into account of
the last drawn pay received in the cadre of Plate Maker within the period
that may be stipulated by this Court.
For Petitioner :Mr.C.Venkatesh Kumar for
M/s. Ajmal Associates
For R1 :Mr.A.Kannan
Additional Government Pleader
For R2 to R4 :Mr.Ragatheesh Kumar
For M/s. Isaac Chambers
ORDER
This writ petition is filed as against the order of reversion
and the order of recovery passed by the third respondent in
e.f.vz;.M3/1087/2020, dated 03.06.2020 e.f.vz;.M3/1087/2020,
dated 23.06.2020 respectively.
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W.P(MD)No.7435 of 2020
2.The case of the petitioner is that the petitioner is a retired
Plate Maker, who worked in Publication Department under the third
respondent University. Initially, he was appointed as Assistant Plate
Maker cum Machine Man on 23.05.1984 and he was upgraded as Plate
Maker cum Machine Man on 23.05.1991 and he was upgraded as
Selection Grade Plate Maker cum Machine Man on 23.05.1998.
According to the petitioner, based on the demand for time bound
promotion made by the non teaching staff of the University, the third
respondent appointed a Norms Committee and based on the report
submitted by the Norms Committee, resolution has been passed by the
Syndicate in its Resolution No.97.80, dated 10.12.1997, by which, all non
teaching staffs of the respondent University were to get time bound
promotion once in seven years as done in other Universities and consequent
to such resolution, the second respondent, by his proceedings, dated
01.01.1998, promoted the petitioner as Plate Maker-cum-Machine Man in
the time scale of pay Rs.1200- 30-1560-40-2040 w.e.f.23.05.1991 and
pay benefits has been fixed w.e.f 01.10.1996. The petitioner was retired
from service on 30.04.2020, on attaining the age of superannuation as
Plate Maker (Selection Grade Plate Maker cum Machine Man).
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W.P(MD)No.7435 of 2020
3.The grievance of the petitioner is that the third respondent
by his proceedings dated 03.06.2020 cancelled the time bound promotion
given to the petitioner and ordered for recovery of excess amount paid to
the petitioner from 01.10.1996 to 30.04.2020 and by the order dated
23.06.2020, the third respondent passed a re-fixation order and directed
to recover a sum of Rs.20,17,786/- from the petitioner, based on the audit
objection raised by the fourth respondent. Further grievance of the
petitioner is that the orders impugned in this writ petition have been
passed even without giving an opportunity of personal hearing. Hence,
the impugned orders are liable to be quashed. To substantiate his
contentions, the learned counsel has relied upon the order passed by this
Court in W.P(MD) No.3230 of 2007, dated 02.03.2012 and the Judgment
passed by the Division Bench of this Court in W.A(MD) No.145 of 2013,
dated 14.03.2018, wherein, similar relief has been granted by this Court.
4.The learned Additional Government Pleader appearing for
the respondents opposed the contention raised by the petitioner's counsel
by stating that the audit objections can be placed at any point of time and
certain omissions and commissions may not be identified immediately
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W.P(MD)No.7435 of 2020
and the cause of action for imposing recovery would arise only after
identifying the errors during the Audit. Thus, the respondents have issued
the order of recovery in accordance with law. Hence, there is no need to
interfere with the order of recovery.
5.Admittedly, the petitioner retired from service on
30.04.2020 and no notice or opportunity was provided to the petitioner
before issuing the impugned order of recovery. Thus, the order impugned
is in violation of principles of natural justice. This apart, the writ
petitioner was allowed to retire from service on attaining the age of
superannuation. In these circumstances, recovery cannot be imposed on
the retired employees in view of certain audit objection.
6.In this regard, the Hon'ble Supreme Court of India also
enumerated the legal principles 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
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W.P(MD)No.7435 of 2020
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:
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.
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W.P(MD)No.7435 of 2020
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.”
7. The Apex Court states that recovery in respect of retired
employees are impermissible. Further, in this case, no notice was issued
to the writ petitioner before passing the impugned order of recovery.
This Court is of the opinion that now there is no purpose in remitting the
matter for reconsideration, in view of the fact that the petitioner was
already retired from service.
8. In this view of the matter, the impugned order passed by
the third respondent in e.f.vz;. M3/1087/2020, dated 03.06.2020 and
in e.f.vz;.M3/1087/2020, dated 23.06.2020 are hereby quashed and the
writ petition stands allowed. No costs. Consequently, connected
miscellaneous petitions are closed.
06.01.2022
Index : Yes/No
Internet : Yes/No
vrn
https://www.mhc.tn.gov.in/judis
W.P(MD)No.7435 of 2020
Note:
In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
1.The Secretary,
Tamil Development Department,
St.George Fort,
Chennai – 9.
2.The Vice Chancellor,
Tamil University,
Thanjavur,
Thanjavur District.
3.Tamil University,
Rep by its Registrar,
Tamil University,
Thanjavur,
Thanjavur District.
4.The Assistant Director,
Local Fund Audit,
Tamil University,
Thanjavur,
Thanjavur District.
https://www.mhc.tn.gov.in/judis
W.P(MD)No.7435 of 2020
B.PUGALENDHI, J
vrn
Order made in
W.P(MD) No.7435 of 2020 and
WMP(MD) Nos.6889 to 6891 of 2020
06.01.2022
https://www.mhc.tn.gov.in/judis
