Madras High Court
M.Panaiyadian vs The State Of Tamil Nadu on 21 November, 2023
W.P.No.20381 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.11.2023
CORAM:
THE HON'BLE MR.JUSTICE K.KUMARESH BABU
W.P.No.20381 of 2011
and M.P.No.1 of 2011
and W.M.P.No.23876 of 2016
M.Panaiyadian ... Petitioner
Vs
1.The State of Tamil Nadu,
represented by its Secretary,
Commercial Taxes (H1) Department,
Fort St.George,
Chennai – 600 009.
2.The Deputy Inspector General of Registration,
Salem Region, Salem.
3.The Accountant General (A&E)
Chennai – 600 018. ... Respondents
PRAYER:- Writ Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorari to call for the records relating to the
impugned order passed by the 2nd respondent in his proceedings
No.4502/A1/10-2, dated 27.06.2011 and quash the same as illegal with
exemplary costs and pass such other orders.
1/11
https://www.mhc.tn.gov.in/judis
W.P.No.20381 of 2011
For Petitioner : Mr.B.Vishnu Chelliya
For RR1 & 2 : Mr.S.Ravichandran
Additional Government Pleader
For R3 : Served – No appearance
ORDER
This Writ Petition had been filed challenging the order of recovery
passed by the 2nd respondent dated 27.06.2011.
2. Heard Mr.B.Vishu Chelliya, learned counsel for the petitioner and
Mr.S.Ravichandran, learned Additional Government Pleader appearing for
the respondents.
3. The learned counsel for the petitioner submits that the petitioner was
appointed as Junior Assistant in the Registration Department on 15.07.1971
and had retired from service on 31.12.2005 on attaining his age of
superannuation. At the time of retirement, the petitioner was holding the
post as Assistant Registrar. On the recommendation of the 5th Pay
Commission, the petitioner's salary was refixed with effect from 01.01.1996
in the cadre of Sub-Registrar Grade– I which post he was holding at that
time. On refixation of salary, further increments was also granted to him and
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the petitioner was promoted as Registrar in the year 1998. After his
superannuation, the petitioner had received his retirement and terminal
benefits. But, however, vide proceedings dated 10.01.2006, the 2nd
respondent without issuing any show cause notice had revised and refixed
the pay of the petitioner from Rs.10,475/- per month to Rs.9,925/-. Based on
such refixation, a recovery was ordered which was challenged by the
petitioner in W.P.No.20359 of 2006.
4. He would submit that this Court by order dated 30.04.2010 allowed
the Writ Petition and had directed to release the amount that had been
retained from the petitioner's gratuity within a period of three weeks.
Thereafter, a show cause notice was issued by the 2nd respondent seeking to
recover a sum of Rs.75,914/- by proceedings dated 03.11.2010. According to
him, the petitioner submitted a detailed representation opposing the said
show cause notice.
5. The learned counsel for the petitioner had also taken me through
the acknowledgment that had been received by him on the reply sent to the
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show cause notice. He would submit that by the impugned proceedings
dated 27.06.2011, the respondent had directed recovery of the said amount
in 36 monthly installments. He would submit that the reference to the
impugned order does not refer to the show cause notice that was issued to
the petitioner and also the reply given by the petitioner. But, however, the
proceeds to record that inspite of notice under Reference 4 which is dated
24.12.2010, the petitioner had not given any reply. He would submit that no
show cause notice was received by the petitioner as indicated in the
impugned order.
6. Countering his arguments, the learned Additional Government
Pleader would submit that the petitioner had been wrongly paid excess
salary. He would submit that the learned Single Judge while setting aside the
order had observed that such recovery had been made without any notice to
the petitioner and therefore, the show cause notice was issued to him on
03.11.2010, to which the petitioner had replied that it was necessary to
deposit the amount and therefore, the order dated 24.10.2010 came to be
passed. Reiterating the reply of the petitioner to pay the amount and since,
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the petitioner had not paid the amount, the impugned order came to be
passed to recover the amount in 36 monthly installments from the pension
that has been paid to the petitioner. Therefore, he would submit that in the
present case, all the necessary notices have been issued to the petitioner and
there is no violation of principles of natural justice. He would contend that
the petitioner cannot be allowed to unjustly enrich himself at the hands of
the public exchequer and therefore, he would seek to dismiss this Writ
Petition.
7. I have considered the rival submissions made by the learned
counsels appearing on either side and perused the materials available on
record before this Court.
8. It is an admitted case that the petitioner had superannuated on
31.12.2005 and was also permitted to retire from service. After his
retirement from service, an order of recovery was sought to be made which
had came to be challenged before this Court in W.P.No.20359 of 2006. It is
pertinent to note that the learned Single Judge while allowing the Writ
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Petition had held that the order of refixation which was passed 18 years back
was sought to be retrospectively cancelled, that too after his retirement of
service and that too with affording an opportunity to the petitioner. It is more
pertinent to note that having found that the order is bad, the learned single
Judge had directed repayment of the amount retained by the Department
from him. It is also worthwhile to note that the learned single Judge of this
Court has relied upon a judgment of Division Bench reported in (2006) 1
MLJ 143 have come to such a conclusion. It is further noted that the learned
Single Judge had not granted any liberty to the petitioner to initiate any
proceedings to recover the said amount nor had the respondents sought
liberty of this Court to initiate any such proceedings to recover the amount.
9. In such circumstances, it is not open to the respondents to initiate
any recovery proceedings. Had it opined to initiate any such recovery
proceedings, it ought to have approached this Court seeking modification of
the order, to permit them to initiate recovery proceedings. As rightly
submitted by the learned counsel for the petitioner, the show cause notice
issued to the petitioner on 03.11.2010 and the reply sent by the petitioner
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dated 24.11.2010 had not been referred to at all in the order impugned in this
Writ Petition. In fact, a reading of the impugned order would show that the
show cause notice was issued only on 24.12.2010 and the authority had
indicated that no reply had been filed by the petitioner. On this ground alone,
the impugned order is liable to be set aside. In view of the aforesaid reasons,
the impugned order is liable to be interfered with.
10. Further it is imperative to note the judgment of the Hon'ble
Apex Court rendered in State of Punjab and Others Vs Rafiq Masih &
Others reported in (2015) 4 SCC 334 (White washer's case) paragraph
18(2), wherein it was had held that there can be no recovery made from a
retired employee even if such payment had been made by mistake at the
hands of the employer. For better appreciation, the relevant paragraph is
extracted hereunder.
“ 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
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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.
(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.”
11. In such view of the matter, in the present case, since, the
petitioner had superannuated as early as on 31.12.2005 and the excess
payment which is sought to be recovered was not account on
misrepresentation of the petitioner, but, on the account of wrong procedure
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that had been adopted by the respondent, for which the petitioner cannot be
found fault with and such recovery cannot be made from the petitioner.
12. In fine, this Writ Petition is allowed and the order impugned in
this Writ Petition is set aside. However, there shall be no order as to costs.
Consequently, connected miscellaneous petition is closed.
21.11.2023
gba
Index : Yes/No
Speaking order : Yes/No
Neutral Citations : Yes/No
To
1.The State of Tamil Nadu,
represented by its Secretary,
Commercial Taxes (H1) Department,
Fort St.George,
Chennai – 600 009.
2.The Deputy Inspector General of Registration,
Salem Region, Salem.
https://www.mhc.tn.gov.in/judis
3.The Accountant General (A&E)
Chennai – 600 018.
K.KUMARESH BABU,J.
Gba
https://www.mhc.tn.gov.in/judis
21.11.2023
https://www.mhc.tn.gov.in/judis
