Madras High Court
G.Villumani vs The Commissioner Of Labour on 10 January, 2022
W.P.No.10009 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 10.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
W.P.No.10009 of 2014
G.Villumani ... Petitioner
Vs.
1. The Commissioner of Labour,
Teynampet,
Chennai – 600 006.
2. The Inspector of Labour,
Erode District.
3. The Assistant Inspector of Labour,
Erode 4th Circle,
Erode District. ... Respondents
Writ petition filed under Section 226 of the Constitution of India
to issue a Writ of Certiorarified Mandamus, calling for the entire records
which culminated in issuing the proceedings in Se.Mu.No.3457/2008,
dated 21.03.2009 on the file of the second respondent and the
consequential proceedings in Na.Ka.No.175/2008, dated 31.03.2010, on
the file of the third respondent, quash both the orders and consequently
direct the respondents to refund to the petitioner, the sum of Rs.35,838/-
1/10
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W.P.No.10009 of 2014
deducted from him with reasonable rate of interest within a time to be
stipulated by this Court.
For petitioner : Mr.B.K.Girish Neelakandan
For Respondents : Mr.P.Anandakumar,
Government Advocate
ORDER
The Writ Petition has been filed to quash the proceedings in
Se.Mu.No.3457/2008, dated 21.03.2009 and Na.Ka.No.175/2008,
dated 31.03.2010, passed by the 2nd and 3rd respondents respectively
and for a direction to the respondents to refund the sum of Rs.35,838/-
deducted from him with reasonable rate of interest to the petitioner.
2. It is the case of the petitioner that originally the petitioner was
appointed as Junior Assistant on 16.06.1982 under 10 (a) (1) of the
General Rule on temporary basis in Labour Department, Sale District.
After getting concurrence of the Public Service Commission, the
petitioner was regularised with effect from 25.06.1984 vide
G.O.Ms.No.996, Personnel and Administrative (Placements)
Department, dated 22.09.1984. Thereafter, the petitioner was allotted to
the office of the Inspector of Factories, Erode to work as an upgraded
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W.P.No.10009 of 2014
Assistant. Subsequently by proceedings dated 31.07.1995, the petitioner
was transferred from Erode to Office of the Labour Commissioner,
Chennai as a regular Assistant. The petitioner has also passed the
required departmental exams for promotion. In this circumstance, some
of the promoted employees have approached the Tamil Nadu
Administrative Tribunal claiming that the persons who have not passed
the mandatory departmental test have been promoted to the post of
Assistant and they are ineligible to hold such posts. After contest, the
Tribunal held that the panel drawn for the post of
Superintendents/Assistant Inspector of Labour for the years
1998 - 1999 and 1999 - 2000 were valid and should not be disturbed
since all of them had passed the tests before promotion. In the case of
others, the seniority shall be reckoned by taking into account the date of
their appointment as Assistant.
3. As against the same, the aggrieved persons filed W.P.No.18861
of 2001 before the Division Bench of this Court. After elaborate
discussions, on 28.02.2005, the Division Bench had disposed of the
Writ petition, modifying the order of the Tribunal to the effect that the
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W.P.No.10009 of 2014
seniority in the category of Assistants would have to be fixed by taking
into account the date of appointment of Assistants in respect of those
who are fully qualified as per Special Rules, and the part A and B date
of passing of the tests in respect of those who have acquired the test
qualifications after their promotion as Assistants.
4. On the basis of the order dated 28.02.2005, the 1st respondent
had issued a memorandum dated 24.03.2005 publishing a draft
re-arranged seniority list for Assistants who have been promoted after
17.11.1984 and hence the petitioner's seniority has been revised from
Serial No.1320 to 1745, thereby, the excess amount calculated at
Rs.35,838/- which paid to the petitioner, was sought to be recovered by
the respondents. Subsequently, the petitioner was retired from service on
31.10.2008. Therefore, by proceedings dated 31.03.2010, the 2nd
respondent directed to deduct the sum of Rs.35,838/- from the
petitioner's DCRG benefit in three instalments, which according to the
petitioner, there is a discrimination on the part of the respondent in
deducting the amount since the Division Bench order has not been given
effect to all other concerned. In this regard, the petitioner has also made
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W.P.No.10009 of 2014
a representation dated 25.09.2013 to the 1st respondent for refund of the
said amount. However, the same has been rejected on the ground that
the amount was already been deducted. Hence, the petitioner has filed
the present Writ Petition.
5. The learned counsel for the petitioner submitted that the
impugned order of the respondent department is legally not sustainable.
According to the petitioner, when recovery made from the petitioner, the
same manner should be followed to the all other identically placed
employees but there is no such recovery has been made to other
employees. Hence, the petitioner alone has been discriminated.
6. The learned counsel for the petitioner also relied on the
Judgement of this Court made in W.P.No.6000 of 2013, dated
15.03.2019 in support of his case in which the recovery proceeding has
been set aside in favour of the petitioner therein.
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W.P.No.10009 of 2014
7. The learned Government Advocate filed counter affidavit
stating that in pursuance to the orders of this Court made in
W.P.No.18861 of 2001, a revised seniority list of Assistant was prepared
for the employees who were promoted after 17.11.1984. In the above
seniority list, the seniority of the petitioner has been fixed as 1744
instead of 1292 in the cadre of Assistant in regard to the date of passing
of Departmental exam. Thereafter, the 2nd respondent issued a
proceedings dated 21.03.2009, regulating the pay of the petitioner in the
post of Junior Assistant from 04.04.1994 to 30.05.2003 and in the post
of Assistant from 31.05.2003 to 31.10.2008. Hence, the excess pay of
Rs.35,838/- drawn by the petitioner from 04.04.1994 to 31.10.2008
was ordered to be recovered from the Death cum Retirement Gratuity as
per Rule 4 of the Statutory Service Rules of Fundamental Rules.
8. The learned counsel for the respondents further submitted that
the petitioner has given consent for recovery / pay allowance when he
attained the age of superannuation. Therefore, on the basis of the
proceeding of the 2nd respondent and upon the acceptance letter dated
1803.2009 of the petitioner, the excess amount has been recovered from
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W.P.No.10009 of 2014
the petitioner's DCRG benefit. Hence, the procedure adopted by the
respondent is fair and there is no reason to interfere with the order
passed by the respondent / department. It is also contended that the
petitioner has approached this Court after lapse of five years from the
date of passing of impugned order and there is no valid reason given for
the said delay.
9. In response, the learned counsel for the petitioner submitted
that the consent letter given by the petitioner on 18.03.2009 is a regular
formality followed by all employees at the time of settling terminal
benefits. Therefore the said contention cannot be sustainable. Insofar
as the delay in filing the Writ Petition is concerned, the learned counsel
for the petitioner submitted that the petitioner has made attempts to
approach the authorities concerned to refund the amount remitted and in
this regard the petitioner had made representations before the authorities
concerned. Hence, there is no delay in filing the Writ Petition.
10. I have heard the learned counsel appearing on either side and
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W.P.No.10009 of 2014
perused the materials available on record.
11. On a perusal of the papers, it shows that there is no proof
enclosed in the typed set of papers with regard to the delay. Further this
Court finds that there is no discussion about the recovery proceedings in
the Judgment made W.P.No.6000 of 2013 which relied on by the
petitioner. In the case on hand, the petitioner has given consent on
18.03.2009 for recovery proceedings and the Writ Petition has also been
filed after lapse of five years from the date of passing of impugned
order. There is no violation in the recovering proceedings made by the
respondent department. Therefore, this Court finds no reason to
interfere with the order of the respondent department and there is no
merits in this Writ petition. Accordingly, the Writ petition is dismissed.
No costs.
10.01.2022
Index:Yes/No
Speaking/non Speaking order
vum
To
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W.P.No.10009 of 2014
The Director General of Coast Guard,
Tatrakshak Mukhalaya,
Coast Guard Head Quarters,
national Stadium Complex,
New Delhi 110 001.
D. KRISHNAKUMAR, J.
https://www.mhc.tn.gov.in/judis
W.P.No.10009 of 2014
vum
W.P.No.10009 of 2014
10.01.2022
https://www.mhc.tn.gov.in/judis
