Madras High Court
The Tamil Nadu Industrial ... vs S.Kirubanidhi on 13 March, 2023
W.A.No.1471 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.03.2023
CORAM :
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
W.A.No.1471 of 2013
The Tamil Nadu Industrial Investment
Corporation Limited,
Rep. by its Managing Director,
No.692, Anna Salai,
Nandanam, Chennai – 600 035. ... Appellant
vs
1.S.Kirubanidhi
2.K.Sukumar
3.P.Murugesan
4.P.Selvaraj
5.S.Rajagopal
6.V.Natarajan
7.R.Gunasekaran
8.V.P.Dinakar
9.M.Muthukrishnan
10.S.Govindasaminathan
11.Muralidharan
12.The State of Tamil Nadu rep. by its
Secretary to Government,
Small Industries Department,
Fort St.George, Chennai – 600 009.
Page 1 of 13
https://www.mhc.tn.gov.in/judis
W.A.No.1471 of 2013
13.The Secretary to Government,
Industries Department,
Fort St.George, Chennai – 9. ... Respondents
Prayer: Appeal under Clause 15 of the Letters Patent, to set aside the order
made in W.P.No.24229 of 2002 dated 26.02.2013 and consequently dismiss
the writ petition filed by the respondent with costs.
For Appellant : Mr.S.Silambanan
Additional Advocate General
assisted by Mr.K.Magesh
For Respondent
For RR1 & 7 : Not ready in notice
For RR 2, 4, 5 & 11 : No appearance
For RR 3, 6, 8, 9 & 10 : No appearance
For RR12 & 13 : Mr.P.Anandakumar
Additional Government Pleader
JUDGMENT
(Judgment of the Court was delivered by D.KRISHNAKUMAR, J.)
The appellant / third respondent has preferred this appeal as against
the final order passed in W.P.No.24229 of 2002, allowing the writ petition
and to pass a direction to refund the principal amount recovered from the
petitioner.
https://www.mhc.tn.gov.in/judis
W.A.No.1471 of 2013
Brief facts of the case:-
2.1. Respondents 1 to 11 were working as Senior Regional Managers
in the appellant / Corporation, namely, the Tamil Nadu Industrial
Investment Corporation Limited (hereinafter called as TIICL). The TIICL is
providing financial assistance for starting small and medium scale industries
and also providing loans for purchase of transport vehicles and trawlers in
the State of Tamil Nadu and Pondicherry. TIICL is sponsored by the
Government of Tamil Nadu and the Government of Tamil Nadu holds 48%
of the share. While so, pursuant to the V Pay Commission, the TIICL Staff
Welfare Association requested the appellant to revise the pay scales of its
employees. The Board of TIICL forwarded the said proposal to the Finance
Department. Since no action has been taken by TIICL, the TIICL Staff
Association filed a writ petition in W.P.No.15213 of 1989 to implement the
decisions taken by the Board, in its meeting held on 08.09.1989 and the
same was dismissed on 19.03.1990. Challenging the same, they filed writ
appeal in W.A.No.216 of 1991 and the same was also dismissed on
11.03.1991.
https://www.mhc.tn.gov.in/judis
W.A.No.1471 of 2013
2.2. Thereafter, TIICL has resolved to approve the revised scales of
pay applicable to the posts namely, General Manager, Deputy General
Manager, Assistant General Manager, Manager and Assistant Manager,
effecting from 01.06.1988 with monetary benefit from 01.01.1993.
Accordingly, the scale of pay have been revised. G.O.Ms.No.811, Industries
Department, dated 07.08.1990 has fixed the scale of pay on par with the
Government Employees in respect of the above said posts. Therefore, TIICL
was directed to effect recovery of excess payment. Against the said order,
87 officials of TIICL filed W.P.No.1035 of 1997 and the same was admitted
and interim orders were granted. Thereafter, the said interim orders were
vacated and the writ appeal filed against the said order itself was also
dismissed on 20.10.2003. Aggrieved by the same, the respondents 1 to 11
filed writ petition in W.P.No.24229 of 2002 and the same was allowed by
this Court on 26.02.2013. Aggrieved by the same, the appellant TIICL has
filed the present appeal.
https://www.mhc.tn.gov.in/judis
W.A.No.1471 of 2013
3. The learned counsel for the appellant / third respondent submitted
that the respondents 1 to 11 / writ petitioners herein filed a writ petition in
W.P.No.1035 of 1997 stating that the Government of Tamil Nadu in the
Letter No.811 of the Industries Department, dated 07.08.1990, approved the
following scales of pay for the post as indicated in the said Government
order:
Sl. Posts Scale of pay
No.
1. General Manager Rs.5100-150-5700-200-6300
2. Deputy General Manager Rs.4500-150-5700
3. Assistant General Manager Rs.4250-135-5060-150-5510
4. Manager Rs.4100-125-4850-150-5300
5. Assistant Manager Rs.3000-100-3500-125-4500
4. The Board of Corporation, in its meeting held on 19.04.1994, had
resolved to approve the revised scales of pay to the above said posts with
effect from 01.06.1988 with monetary benefits from 01.01.1993.
Accordingly, the basic pay for all the above said officials in the cadres were
revised as resolved by the Board. Subsequently, the Government of Tamil
Nadu, by its Letter No.4919/SID/95-8, Small Industries (SID) Department,
https://www.mhc.tn.gov.in/judis
W.A.No.1471 of 2013
dated 18.11.1996, had issued instructions to the appellant / Corporation to
adopt the following scales of pay, which were approved, vide Letter
No.811, Industries Department, dated 07.08.1990.
Sl. Posts Revised Scale of pay
No.
1. General Manager Rs.4500-150-5700
2. Deputy General Manager Rs.4100-125-4850-150-5300
3. Assistant General Manager Rs.3700-125-4700-150-5000
4. Manager Rs.3000-100-3500-125-4500
5. Assistant Manager Rs.2500-75-3100-100-4200
5. Pursuant to the aforesaid revised scales of pay, appropriate
instructions were issued to draw and disburse salary to the officials in the
above categories as per the relevant pay Rules of the Corporation on the
basis of revised scale of pay now fixed by Government with effect from
01.01.1997 and also to indicate the excess amount already paid for the
period from 01.01.1993 to 31.12.1996, and the same is directed to be
recovered from the concerned employees. Aforesaid communication dated
18.11.1996 was challenged in W.P.No.1035 of 1997. After the arguments
advanced by both the parties, the said writ petition came to be dismissed on
20.10.2003 by this Court and challenging the said dismissal order passed by
this Court, the employees had preferred an appeal in W.A.No.1473 of 1997
https://www.mhc.tn.gov.in/judis
W.A.No.1471 of 2013
as against the said writ petition and the same was also dismissed on
28.04.1998.
6. The learned counsel for the appellant / Corporation submitted that
in the aforesaid order passed, the power of the authority had been confirmed
for taking necessary action for recovering the revised scale of pay and also
for recovering the said amount from the employees. Thereafter, the
respondents 12 and 13 initiated steps to recover the excess amount from the
writ petitioners, as per the revised scale of pay and that was only challenged
in the present W.P.No.24229 of 2002, which came to be allowed by this
Court on 26.02.2013 and that is the order which is under challenge in this
appeal.
7. According to the learned counsel for the appellant / Corporation
the writ Court has wrongly relied on a decision reported in (2009) 3 SCC
475 in the case of Syed Abdul Qadir and Others Vs. State of Bihar and
Others, in which, the Hon'ble Supreme Court of India has held that if any
excess amount has not been paid on account of misrepresentation and fraud
https://www.mhc.tn.gov.in/judis
W.A.No.1471 of 2013
on the part of the employee, no recovery can be made from the said
employee.
8. The learned counsel appearing for the appellant / Corporation has
also relied upon the judgment of the Hon'ble Supreme Court of India
reported in (2015) 4 SCC 334 in the case of State of Punjab and Others Vs.
Rafiq Masih (White Washer) and Others. It is useful to rely upon the
relevant paragraph No.18 in the above said judgment, in which, appropriate
orders have been passed, which reads as follows;-
“ 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
https://www.mhc.tn.gov.in/judis
W.A.No.1471 of 2013
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 case 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.”
9. According to the appellant / Corporation, the respondents 12 and
13 have initiated the proceedings for recovery of excess amount from the
respondents / writ petitioners within a period of five years, vide proceedings
https://www.mhc.tn.gov.in/judis
W.A.No.1471 of 2013
dated 24.01.1997. The respondents 1 to 11 / employees have challenged the
Government Order in Letter No.4949/SID/95-8 dated 18.11.1996 and
consequently, recovery order has been passed in proceedings in
Admn/A1/15079/96 dated 20.01.1997, which has been challenged in
W.P.No.1035 of 1997 by questioning the power of the respondents 12 and
13 herein to revise the scale of pay.
10. According to the appellant / Corporation, the aforesaid
proceedings have been initiated within a period of five years. Therefore,
according to them, the period cited in the above said judgment in the case of
State of Punjab and Others Vs. Rafiq Masih (White Washer) and Others
in paragraph No.18, in Clause III, recovery should not be made 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.
11. On the facts of this case is concerned, they have initiated recovery
proceedings within a period of five years. Thus, according to the learned
counsel appearing for the appellant, the impugned order in the writ petition
https://www.mhc.tn.gov.in/judis
W.A.No.1471 of 2013
is therefore perfectly within the legal parameters of the decision taken by
the Hon'ble Supreme Court. The aforesaid decision has been rendered by the
Hon'ble Supreme Court in the year 2015. Therefore, in the light of the
aforesaid decision of the Hon'ble Supreme Court, the power is granted to
the respondents 12 and 13 to recover the said amount from the employees.
12. We have also heard the arguments of the learned Additional
Government Pleader appearing for the respondents 12 and 13 and perused
the aforesaid decision of the Hon'ble Supreme Court in the case of State of
Punjab and Others Vs. Rafiq Masih (While Washer) and Others.
13. In the light of the guidelines and parameters laid down by the
Hon'ble Supreme Court, pointing out few circumstances where recovery
from the employees would be impermissible in law, the respondents 1 to 11
/ employees will not come under the said parameters for entitlement of the
relief of refund of the said amount, which has been already paid to the
appellant / Corporation. In such circumstances, the impugned order passed
by the learned single Judge of this Court is liable to be set aside.
https://www.mhc.tn.gov.in/judis
W.A.No.1471 of 2013
14. Accordingly, the writ appeal stands allowed and the impugned
order passed by this Court in W.P.No.24229 of 2002 dated 26.02.2013 is
hereby set aside. There shall be no as to costs.
(D.K.K.J.) (K.G.T.J.)
13.03.2023
Index : Yes/No
Neutral Citation : Yes/No
Speaking / Non- Speaking order
ata
To
1.The State of Tamil Nadu rep. by its
Secretary to Government,
Small Industries Department,
Fort St.George, Chennai – 600 009.
2.The Secretary to Government,
Industries Department,
Fort St.George, Chennai – 9.
3.The Tamil Nadu Industrial Investmen Corporation Limited,
Rep. by its Managing Director,
No.692, Anna Salai,
Nandanam, Chennai – 600 035.
https://www.mhc.tn.gov.in/judis
W.A.No.1471 of 2013
D.KRISHNAKUMAR, J.
and
K.GOVINDARAJAN THILAKAVADI, J.
ata
W.A.No.1471 of 2013
13.03.2023
https://www.mhc.tn.gov.in/judis
