Madras High Court

R.Murugesan vs The Joint Director (Tea) on 7 September, 2022

                                                                                 W.P.No.16344 of 2019




                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED: 07.09.2022

                                                          CORAM:

                                  THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE

                                               W.P.No.16344 of 2019 &
                                        W.M.P.Nos.16031 of 2019 & 2280 of 2020

                     R.Murugesan                                                  ... Petitioner
                                                             vs.

                     1.The Joint Director (Tea),
                       INDCOSERVE Campus,
                       Coonoor – 643 101, The Nilgiris District.

                     2.The Managing Director,
                       The Salisbury Industrial Co-operative Tea Factory Ltd.,
                       Gudalur – 643 212, The Nilgiris District.                 ...Respondents



                     Prayer: Writ petition filed under Article 226 of the Constitution of India
                     for writ of Certiorari calling for the records relating to the Letter in
                     Na.Ka.No.757/Tho.Koo/19 dated 08.05.2019 of the first respondent and
                     recovery proceedings in Procs.Rc.No.46/2018-19 dated 27.05.2019 of the
                     second respondent and quash the same as being illegal, arbitrary,
                     unconstitutional and contrary to natural justice.
                                     For Petitioner      : Mr.L.Chandrakumar,
                                                           for Mr.K.Lavan

                                     For Respondents : Mr.R.Bala Ramesh

                     1/10


https://www.mhc.tn.gov.in/judis
                                                                                         W.P.No.16344 of 2019




                                                                ORDER

This writ petition has been filed challenging the impugned letter dated

08.05.2019 issued by the first respondent and the recovery proceedings

dated 27.05.2019 issued by the second respondent.

2. Heard Mr.L.Chandrakumar, learned counsel representing

Mr.K.Lavan, learned counsel for the petitioner and Mr.R.Bala Ramesh,

learned counsel for the respondents.

3. In the impugned proceedings, the petitioner has been directed to

remit the following amounts which according to the respondents, were paid

in excess to him:

                                                  Period             Amount
                                                                      (Rs.)
                                       2017-18                            2,49,322/-
                                       April 2018- April 2019             2,43,401/-
                                       Total                              4,92,723/-
                                       Interest                             64,065/-
                                       Amount                             5,56,788/-

4. The petitioner has challenged the impugned proceedings on the

https://www.mhc.tn.gov.in/judis W.P.No.16344 of 2019

following grounds:

(a) No show cause notice was issued by the respondents to the

petitioner before ordering recovery of alleged excess payments.

(b) Alleged excess payments said to have been made was not due to

the petitioner's misrepresentation, fraud or collusion.

W.P.No.20314 of 2004 that the petitioner has undergone punishment for

twelve years and that does not mean that the twelve years period should be

treated as punishment period as such the petitioner is not entitled to notional

increment for that period is incorrect.

(d) The respondents have also failed to take note that as per the

undertaking given before this Court in W.P.No.20314 of 2004, the petitioner

did not claim back wages of Rs.44,06,658/- due for the period from the date

of removal till the date of reinstatement.

(e) The respondents have not furnished the pay fixation statement to

the petitioner to prove the excess payments and how they arrived at the

excess payments.

https://www.mhc.tn.gov.in/judis W.P.No.16344 of 2019

(f) The Audit Report mentioned in the impugned proceedings have

also not been served on the petitioner.

(g) The impugned proceedings have been issued by total non

application of mind and have been issued in violation of the settled law

which makes it clear that the respondent cannot seek recovery of excess

payments for no fault of the petitioner.

5. A counter affidavit has been filed by the second respondent

wherein they have narrated as to how the respondents have erroneously

made excess payments to the petitioner. However, insofar as the contention

raised by the petitioner in this writ petition is concerned, the same has not

been rebutted by the respondents in the counter affidavit.

6. Admittedly, no show cause notice was issued to the petitioner prior

to the impugned communications seeking for recovery of excess payments

from the petitioner. The petitioner is attaining superannuation in the month

of January 2024. Admittedly, the petitioner has also not suppressed any

proceedings which made the respondents to make excess payments and if at

all excess payments were made, it was only due to the fault of the

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respondents.

7. The law with regard to the subject issue is well settled by the

decision of the Hon'ble Supreme Court in the case of State of Punjab and

others vs. Rafiq Masih (White Washer) and others reported in (2015) 4

SCC 334 commonly known as White Washer case. The relevant paragraph

of the said judgment is reproduced hereunder:

“8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.

https://www.mhc.tn.gov.in/judis W.P.No.16344 of 2019

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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:

(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.

https://www.mhc.tn.gov.in/judis W.P.No.16344 of 2019

(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.”

8. The aforesaid decision has also been followed by the recent

decision of the Hon'ble Supreme Court in the case of Thomas Daniel vs.

State of Kerala and Others reported in 2022 SCC Online SC 536.

9. In the case on hand, it is not in dispute that for no fault of the

petitioner, he has been called upon to pay the excess amounts which

according to the respondents have been allegedly made by them. The

Hon'ble Supreme Court in the aforesaid decisions has made it clear that

whenever, any excess payment has been made by the employer for no fault

or misrepresentation of the employee which is unfair and causes irreparable

hardship to the petitioner, the question of return of the alleged excess

payment of the employer by the employee will not arise. The petitioner is a

record clerk and is a physically handicapped person. Further, he is also