Madras High Court
The Director Of School Education vs K.Hemalatha on 1 October, 2024
Author: D.Krishnakumar
Bench: D.Krishnakumar
W.A.No.2916 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.10.2024
CORAM :
THE HON'BLE MR.K.R.SHRIRAM, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.KRISHNAKUMAR
W.A.No.2916 of 2024
ad CMP No.21551 of 2024
1. The Director of School Education,
DPI Campus, College Road,
Chennai-600 006.
2. The Chief Educational Officer,
Chennai District, Egmore,
Chennai-600 008.
3. The District Educational Officer,
Chennai South Educational District,
Egmore, Chennai-600 008. ... Appellants
-vs-
1.K.Hemalatha
2.The Secretary,
Kalyanam Girls Higher Secondary School,
Chindradripet, Chennai-600 002. ... Respondents
Prayer : Appeal filed under Clause 15 of the Letters Patent against the
order dated 28.11.2023 passed in W.P.No.17659 of 2020 on the file of this
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W.A.No.2916 of 2024
Court.
For Appellants : Mr.U.M.Ravichandran
Special Govt. Pleader
For Respondents : Mr.S.Nedunchezhiyan
For R-1/Caveator
*****
JUDGMENT
(Judgment of the Court was delivered
by the Hon'ble Chief Justice)
This appeal is impugning an order and judgment dated 28.11.2023
passed by a learned Single Judge of this Court while disposing of a writ
petition filed by first respondent.
2. Since the issue involved was narrow, we, with the consent of
learned counsel on either side, decided to dispose of the appeal at the
admission stage itself.
3. First respondent was a Music Teacher in the second respondent
school. The basic pay of first respondent as on 01.06.2009 was Rs.4,500-
125-7000 append with consequential revision of scale of pay. The claim of
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first respondent in the writ petition was that her salary has to be fixed as
per Sixth Pay Commission in the pay scale mentioned earlier. Her scale
was revised in PB-1 of Rs.5,200-20200 + 2800 GP with fixation of basic
salary as Rs.11,170/-. Admittedly, there was excess payment of salary
made to first respondent between the period from 01.06.2009 to
31.03.2015. The salary had been wrongly fixed in the pay scale of
Rs.8370 + 2800 instead of Rs.5,470+2800. Therefore, an order was
issued on 05.01.2017 to recover the excess payment which was
Rs.2,60,154/-. On 10.01.2017, first respondent remitted into Government
account the excess salary amount of Rs.2,60,154/-. Thereafter, in 2020,
almost four years later, first respondent filed Writ Petition No.17659 of
2020, alleging that the amount was wrongly recovered and seeking return
of the said amount.
4. The learned Single Judge, relying upon a judgment of the Apex
Court in State of Punjab and others vs. Rafiq Masih (White
Washer) 1, held that the recovery was not permissible from any person
belonging to Class-III and Class-IV service (Group 'C' and Group 'D'
1 (2015) 4 SCC 334
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service). First respondent, admittedly, belonged to Group 'C' category
and following the principle laid in Rafiq Masih (supra), the Court allowed
the writ petition and directed the appellants to release the amount
recovered from first respondent.
5. Mr.U.M.Ravichandran, learned Special Government Pleader
(Education), appearing for the appellants, submitted that the facts in
Rafiq Masih (supra) were entirely different from the facts in the present
case. Mr.Ravichandran submitted that in Rafiq Masih (supra), the
amount was being recovered much after the employee retired, whereas in
the case at hand, the employee had already returned the money that was
recovered and four years later, has approached the Court.
Mr.Ravichandran also submitted that what weighed in the mind of the
Apex Court in Rafiq Masih (supra) was that the orders passed by the
employer seeking recovery of monetary benefits wrongly extended to the
employee would have resulted in a hardship of a nature which would far
outweigh the equitable balance of the employer's right to recover and it
would be iniquitous to recover the payment made, whereas in the case on
hand, the money has already been returned by the first respondent
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during the course of employment.
6. Per contra, Mr.S.Nedunchezhiyan, learned counsel appearing
for the first respondent, who has entered appearance on caveat, relying
upon the judgment in Jagdish Prasad Singh vs. State of Bihar
and others2 submitted that the Apex Court once again, following Rafiq
Masih (supra) held that the amount was not recoverable.
7. In our view, the judgment in Jagdish Prasad Singh (supra) is
also not applicable to the facts of this case inasmuch as in that case, the
recovery was being made eight years after the retirement of the employee
and hence, the Court felt that the hardship would far outweigh the
equitable balance of the employer's right to recover.
8. We would agree with the stand of the appellants that Rafiq
Masih (supra) would not be applicable to the facts of this case. As noted
earlier, first respondent had already remitted into the Government
account on 10.01.2017 the excess salary amount of Rs.2,60,154/- and
2 2024 SCC OnLine SC 1909
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after a period of almost four years, approached the Court by filing the
writ petition. Firstly, first respondent's case itself is affected by delay and
laches. First respondent having already remitted the excess salary cannot
state that she had to undergo any hardship of a nature which was the
case in Rafiq Masih (supra).
In the circumstances, the impugned order dated 28.11.2023 in
W.P.No.17659 of 2020 is hereby quashed and set aside. Writ Appeal is
allowed. No order as to costs. Consequently, C.M.P.No.21551 of 2024 is
closed.
(K.R.SHRIRAM, CJ.) (D.KRISHNAKUMAR, J.)
01.10.2024
Index : Yes/No
NC : Yes/No
sra
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THE HON'BLE CHIEF JUSTICE
AND
D.KRISHNAKUMAR,J.
(sra)
01.10.2024
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