Madras High Court
The Superintending Engineer vs The Tamil Nadu Electricity Board on 12 January, 2023
W.P.No.31856 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 12.01.2023
CORAM
THE HONOURABLE Mrs. JUSTICE J.NISHA BANU
W.P.No.31856 of 2005
and
W.P.M.P.No.34937 of 2005
The Superintending Engineer,
Dharmapuri Electricity Distribution Circle,
Tamil Nadu Electricity Board,
Dharmapuri. .... Petitioner
vs
1. The Tamil Nadu Electricity Board,
Accounts and Executive Staff Union,
Hosur.
2. The Presiding Officer,
Labour Court, Salem. .... Respondents
Writ Petition filed under Article 226 of the Constitution of India to issue
a Writ of Certiorari to call for the records of the second respondent relating to
its order dated 29.11.2004 passed in I.D.No.384 of 2003 and quash the same as
illegal and without jurisdiction.
1/6
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W.P.No.31856 of 2005
For Petitioner : Mr.Anand Gopalan
for M/s. T.S.Gopalan & Co.,
For respondents : No appearance for R1
R2-Court.
ORDER
This Writ Petition has been filed challenging the order passed by the
second respondent dated 29.11.2004 made in I.D.No.384 of 2003, directing the
petitioner to pay the amount deducted from the salary of the employee
K.Arumugam within three months from date of the award with 6% interest from
the date of petition till the date of realisation.
2. Heard the learned counsel for the petitioner and perused the
materials available on record.
3. The first respondent/ Union raised a dispute on behalf of its member
K.Arumugam, an employee of Tamil Nadu Electricity Board, working as Record
Clerk in Hosur office in respect of recovery of excess amount paid to him while
fixing his pay on his moving to selection grade. The Government in
G.O.Ms.No.995 Labour and Employment Department dated 16.10.2003 referred
the dispute for adjudication to the second respondent/Labour Court which was
taken on file in I.D.No.384 of 2003.
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W.P.No.31856 of 2005
4. It is the contention of the first respondent Union before the Labour
Court that its member K.Arumugam who was working as Record Clerk joined in
the services of Tamil Nadu Electricity Board on 10.04.1970; that he had been
working as Record Clerk from 05.11.1977; that he was entitled to selection
grade on his completion of 10 years of service in the post of Record Clerk; that
the employee was granted selection grade salary from 01.10.1988; that the
management has ordered recovery of excess payment from the salary of the
employee in 10 instalments from May,1996 to February 1997; that the recovery
is illegal and contrary to the Rules and Regulations of the Board; that the
recovery order was made after a period 8 years without giving any
opportunity to the employee and prayed for refund of the amount to the
employee.
5. Learned counsel for the petitioner would contend that K.Arumugam,
a member of the first respondent/Union on completion of 10 years of service in
the post of Record Clerk was conferred Selection Grade and his pay was
revised. While revising the pay, a wrong fixation of pay was ordered which
resulted in excess payment of Rs.4970/-. This excess payment was detected by
Audit Wing on 06.04.1995 and hence, the recovery order was passed.
6. The issue involved in this writ petition is directly covered by a
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W.P.No.31856 of 2005
judgment of the Hon'ble Apex Court in the case of State of Punjab Vs. Rafiq
Masih (Whitewasher) (2015 (4) SCC 334) where it has been held that
recovery in respect of excess payment is impermissible from an employee
when the employee was not at fault at the time such pay fixation was done in
his favour. Relevant portion of the judgment is quoted herein below :-
"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 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.
(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.
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W.P.No.31856 of 2005
(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."
7. It is noticed that the employee K.Arumugam was not in any way
responsible for wrong fixation for his salary and consequently, he was not
responsible for the excess payment made to him during his service.
8. In light of the above, this Court is of the view that the issue involved
in this writ petition is squarely covered by the judgment of the Hon'ble
Supreme Court reported in (2015 (4) SCC 334) supra and consequently, the
recovery from the salary of the employee K.Arumugam should not have been
made by the petitioner. Therefore, this Court is of the view that the award
passed by the Labour Court need not be interfered with. Accordingly, the Writ
Petition stands dismissed. The award passed by the second respondent/Labour
Court in I.D.No.384/2003 dated 29.11.2004 is confirmed. No costs.
Consequently, connected miscellaneous petitioner is closed.
12.01.2023
Index:Yes/No
Speaking/Non-speaking order
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W.P.No.31856 of 2005
vsi
J.NISHA BANU,J.
vsi
To
1. The Tamil Nadu Electricity Board,
Accounts and Executive Staff Union,
Hosur.
2. The Presiding Officer,
Labour Court, Salem.
W.P.No.31856 of 2005
12.01.2023
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