Madras High Court
C.Vijayalakshmi vs The Joint Commissioner (St) on 10 January, 2023
W.P.(MD)No.4976 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.01.2023
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.(MD)No.4976 of 2020
and
W.M.P(MD) Nos.4353 & 11407 of 2020
C.Vijayalakshmi : Petitioner
Vs.
The Joint Commissioner (ST)
Chennai South Division,
Chennai. : Respondent
PRAYER : Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorari to call for the records pertaining to
the Na.Ka.No.3186/2018/Aa4 dated 27.01.2020 and quash the same as
illegal and unlawful.
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W.P.(MD)No.4976 of 2020
For Petitioner : Mr.J.Pooventhera Rajan
For Respondent : Mr.S.P.Maharajan
Special Government Pleader
ORDER
This writ petition has been filed to quash the impugned order
passed by the respondent herein in Na.Ka.No.3186/2018/Aa4, dated
27.01.2020.
2. The learned counsel for the petitioner submitted that the
petitioner was appointed as Khadi Assistant Grade III in the Tamil Nadu
Khadi Board from 21.09.1995. Khadi Board incurred heavy loss and totally
378 staffs were considered as excess staffs and they were proposed to
absorb in Government department. Hence, the Government of Tamil Nadu
issued a Government Order in G.O.Ms.No.154 (Handloom, Handicrafts,
Textiles and Khadi (F2) Department), dated 21.11.2009 framing guidelines
for the absorption of the excess staffs in the Khadi Board to other
Government departments. The petitioner was also one of the excess staff in
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W.P.(MD)No.4976 of 2020
the Khadi Board and she was absorbed in the respondent department and
appointed as Office Assistant. The petitioner was granted with Selection
Grade on completion of 10 years of service and Special Grade on
completion of 20 years service by considering her earlier service rendered in
Khadi Board. Subsequently, the respondent passed the recovery order on
the ground that the earlier service rendered in Khadi Board is not eligible
service for awarding Selection Grade and Special Grade in the Government
department. Accordingly, they passed a recover order, dated 19.12.2017.
Challenging the same, the petitioner and other similarly places persons filed
a writ petition before this Court in W.P.(MD)No.5679 of 2018 and this
Court by order, dated 22.04.2019, allowed the writ petition by quashing the
recovery order, dated 19.12.2017 with consequential direction to the
competent authority to pass appropriate order after issuing show cause
notice within a period of four weeks from the date of receipt of a copy of
this order and pass appropriate orders within a period of two weeks from the
date of show cause notice. Pursuant to which, the present impugned order is
passed. Challenging the same, the present writ petition is filed.
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W.P.(MD)No.4976 of 2020
3. The learned counsel for the petitioner further submitted that the
petitioner is working as clause 4 employee of the respondent department
and earlier rendered service in Khadi Board and thereby, awarded Selection
Grade and Special Grade without any representation made by the petitioner
on their own they are granted Selection Grade and Special Grade and they
are sought to be recovered later point of time, which was challenged before
this Court. Pursuant to the order passed by this Court the present impugned
order is passed. However, the issue arises in the present case is no longer
res integra.
4. To support the contention of the petitioner, he referred to the
decision of the Hon’ble Supreme Court rendered in the case of State of
Punjab and others Vs. Rafik Masih (White Washer) and others reported in
2015(4) SCC-334.
5. By referring the judgment of the Hon’ble Supreme Court of
India, the petitioner submitted that no recovery proceedings can be initiated
even for any excess payment given to the petitioner by the respondents.
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W.P.(MD)No.4976 of 2020
Hence, the Recovery proceedings, initiated by the respondents are liable to
be quashed.
6. The learned Special Government pleader appearing for the
respondents submitted that the Government in its letter, dated 19.12.2017 of
Handloom, Handicrafts, Textiles and Khadi Department has stated that the
employees found surplus in Khadi Board and reappointment will be treated
as new entrance in absorbed department as per G.O.Ms.No.152, dated
12.07.2012. Further, the said letter also states that awarding of Selection
Grade and Special Grade to the said employees is against G.O.Ms.No.154,
dated 21.11.2009. Therefore, instructions has been issued in the
Government letter, dated 19.12.2017 to cancel the Selection Grade and
Special Grade awarded to such employees and to recover the excess pay
after revising the pay, in pursuance of the said letter, a show cause notice,
dated 06.09.2019 was issued. If the petitioner is aggrieved, he ought to have
challenged Government letter, dated 19.12.2017 and not the consequential
order and therefore, the writ petition is not maintainable either on facts or
on law. Hence, prayed for dismissal of the writ petition.
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W.P.(MD)No.4976 of 2020
7. Heard the learned counsel on either side and perused the
materials available on record.
8. The facts in the present case are not in dispute. Admittedly, the
petitioner was appointed as Khadi Assistant Grade-III in Khadi Board and
thereafter, the petitioner found as excess staff in Khadi Board, thereby
totally she was absorbed in other Government department. While she was
working in the respondent department, she was awarded with Selection
Grade and Special Grade on completion of 10 years and 20 years service,
respectively. That the incentive increment sought to be recovered
subsequently, on the ground that the service rendered in the Khadi Board, is
not eligible to get benefits in the respondent department, thereby, the present
recovery order was passed. Though there is no violation of principles of
natural justice, the present recovery order is passed after hearing the
petitioner. However, the similar issue came up for consideration before the
Hon'ble Apex Court, wherein, the Apex Court held that in the absence of
any misrepresentation, if any benefits granted to the clause 3 and 4
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W.P.(MD)No.4976 of 2020
employees cannot be sought to be recovered subsequently, at a later point of
time.
9. In the decision of the Hon’ble Supreme Court rendered in the
case of State of Punjab and others Vs. Rafik Masih (White Washer) and
others reported in 2015(4) SCC-334 and referred paragraph No.12, wherein,
it was held as follows :
"12. 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
herein above, we may, as a ready reference, summarise
the following few situations, wherein recoveries by the
employers, would be impermissible in law:
(i) Recovery from employees belonging to
Class-III and Class-IV service (or Group 'C'
and Group 'D' service).
(ii) Recovery from retired employees, or
employees who are due to retire within one
year, of the order of recovery.
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W.P.(MD)No.4976 of 2020
(iii) Recovery from 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 be iniquitous or harsh or
arbitrary to such an extent, as would far
outweigh the equitable balance of the
employer's right to recover."
10. In view of the settled proposition of law laid down by the
Hon’ble Apex Court, the Recovery proceedings, initiated by the respondents
is not sustainable, and accordingly, the present impugned order is quashed.
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W.P.(MD)No.4976 of 2020
11. Accordingly, this writ petition is allowed. The present
impugned order is quashed. No costs. Consequently, connected
miscellaneous petitions are closed.
10.01.2023
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
RM
To
The Joint Commissioner (ST)
Chennai South Division,
Chennai.
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W.P.(MD)No.4976 of 2020
M.DHANDAPANI, J.
RM
W.P.(MD)No.4976 of 2020
10.01.2023
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