Madras High Court
A.Kamal Sahib vs The Director on 21 October, 2024
W.P.No.21650 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.10.2024
CORAM:
THE HONOURABLE MR.JUSTICE G.ARUL MURUGAN
W.P.No.21650 of 2012
and M.P.No.2 of 2012
A.Kamal Sahib ... Petitioner
versus
1.The Director,
Local Fund Audit,
Kuralagam, IV Floor,
Chennai - 600 108.
2.The Assistant Director,
Directorate of Local Fund Audit,
Kuralagam,
Chennai - 600 108.
3.The Commissioner,
Thiruthani Municipality,
Thiruthani,
Thiruvallur District.
4.The Executive Officer,
Thiruthani Municipality,
Thiruthani, Thiruvallur District. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certiorarified Mandamus, calling for the records
pertaining to the impugned orders of the first respondent made in
1/10
https://www.mhc.tn.gov.in/judis
W.P.No.21650 of 2012
Mi.Mu.No.32286/naosa(1)/2007 dated 18.10.2007, fourth respondent in
Na.Ka.No.231/07 dated 14.12.2007 and second respondent in
No.61764/MPV1/07, dated 14.11.2008 (595/08 dated 23.12.2008) and quash
the same and consequently direct the respondents to refund the amount of
Rs.62,584/- illegally recovered from the gratuity of the petitioner with
interest at 18% per annum from the date of recovery to date of refund and
direct the first respondent to fix the pay of the petitioner as per the official
committee pay scale re-fixation in the year 2009 and corresponding to fix
the pay of the petitioner at Rs.9,720/- instead of Rs.6,610/- and also to
refund the difference in pension paid till such refixation.
For Petitioner : Mr.S.Silambanan
Senior Counsel
for M/s.Profexs Associates
For Respondent Nos.1 to 3 : Mr.S.Rajesh
Government Advocate
For Respondent No.4 : Mr.C.Selvaraj
Additional Government Pleader
ORDER
The writ petition is filed challenging the order of the first respondent
dated 18.10.2007, the order of the fourth respondent dated 14.12.2007 and
the order of the second respondent dated 14.11.2008 in so far as refixing the
pay scale of the petitioner and also for recovery of a sum of Rs.62,584/-.
2. According to the petitioner, he was working as a Pipeline Fitter
under the fourth respondent at Thiruthani Third Grade Municipality and was
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appointed on 26.07.1972 in the pay scale of Rs.950-1500. Thereafter, on
26.07.1982, the petitioner was awarded selection grade by the fourth
respondent and fixed the pay scale of Rs.1200-30-1560-40-2040.
Subsequently, special grade was also awarded on 26.07.1992 in the pay scale
of Rs.1320-30-1560-40-2040. The petitioner was also awarded super grade
on 26.07.2002 and the pay scale was refixed at Rs.5,400/-. The petitioner
already attained superannuation on 30.06.2007 and was drawing pension of
Rs.13,610/-. Pursuant to his retirement, the impugned orders came to be
passed in respect of refixation of the pay scale and also for consequential
recovery.
3. The learned Senior Counsel for the petitioner contended that the
impugned orders passed are illegal, particularly when arbitrary refixation of
the pay scale has been made, without even issuing any notice affording an
opportunity to the petitioner. The learned Senior Counsel further contended
that in view of the judgment of the Hon'ble Supreme Court in the case of
State of Punjab Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC
334, once the petitioner retired from service, the respondents cannot recover
any amount alleged to have been paid in excess, for no fault on the part of
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the petitioner.
4. The learned Additional Government Pleader for the fourth
respondent contended that since the authorities came to know that the pay
scale has been wrongly fixed as Rs.1200-30-1560-40-2040 instead of
Rs.1100-25-1150-30-160 as early as on 01.06.1988, the impugned orders
came to be passed for refixation of the pay scale and also for consequential
recovery which is perfectly in order and sought for dismissal.
5. Heard the rival submissions made by the learned counsel
appearing on both sides and perused the materials available on record.
6. Admittedly, the petitioner who had worked as Pipeline Fitter
under the fourth respondent Municipality was awarded with the selection
grade and also special grade and he attained superannuation on 30.06.2007.
The petitioner had put in nearly 34 years and 11 months of service and
pursuant to his superannuation, he has also been awarded pension from
01.07.2007.
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7. At this juncture, based on the impugned order of the first
respondent dated 18.10.2007 stating that the pay scale of the petitioner has
been wrongly fixed as on 01.06.1988 in the pay scale of Rs.1200-30-1560-
40-2040 instead of Rs.1100-25-1150-30-160, the fourth respondent had
passed a consequential order dated 14.12.2007 to implement the orders of
other authorities whereby the pay scale wrongly fixed for the period from
01.06.1988 to 30.06.2007 and calculated a sum of Rs.60,784/- sought to be
recovered.
8. It is relevant to point out that even if there has been any wrong
fixation, the respondents are entitled to fix the pay accordingly, but the pay
fixation cannot be altered disadvantageous to the position of the petitioner,
without issuing any notice affording an opportunity to the petitioner. Also in
view of the settled decision in White Washer's case stated supra, any order
of recovery from the employees who had retired from service and also where
the recovery is for a period beyond 5 years, is impermissible. The relevant
portion of the said judgment 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.”
9. As per Clause 18(ii) of the aforesaid decision, recovery from
the retired employees, or the employees who are due to retire within a period
of one year of the order of recovery, is impermissible and as per Clause 18
(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,
cannot be sustained. Further, it is seen from the records that the pay fixation
has been made only as per the calculation made on the part of the
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respondents and there was no mistake or error on the part of the petitioner in
so far as the fixation of pay to him.
10. In the instant case, since the recovery which is sought to be
made through the impugned orders are admittedly after the retirement of the
petitioner from service and it also relates to a period beyond 5 years before
the date of recovery, the recovery is impermissible in view of Clauses (ii)
and (iii) of paragraph 18 of the above judgment of the Hon'ble Supreme
Court. Further, in the case on hand, impugned proceedings were issued to
recover the amount alleged to have been paid in excess for no fault on the
part of the petitioner, without affording any opportunity of hearing to the
petitioner, which is, in violation of the principles of natural justice.
11. For all the above reasons, the impugned orders passed by the
respondents are not sustainable.
12. If the recovery has been effected, the respondents are directed
to reimburse the recovery made under the impugned orders to the petitioner
within a period of eight weeks from the date of receipt of a copy of this
order along with interest @ 6% per annum. The respondents are at liberty to
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issue necessary notice to the petitioner in respect of correction and refixation
of pay scale after affording an opportunity to the petitioner and thereafter
take a decision, on merits and in accordance with law.
13. In view of the above observations and directions, this Writ
Petition stands allowed and the impugned orders dated 18.10.2007,
14.12.2007 and 14.11.2008 passed by the respondents are set aside. There
shall be no order as to costs. Consequently, connected Miscellaneous
Petition is closed.
21.10.2024
Speaking order / Non-speaking order
Index : Yes / No
Neutral Citation : Yes / No
sri
https://www.mhc.tn.gov.in/judis
To
1.The Director,
Local Fund Audit,
Kuralagam, IV Floor,
Chennai - 600 108.
2.The Assistant Director,
Directorate of Local Fund Audit,
Kuralagam,
Chennai - 600 108.
3.The Commissioner,
Thiruthani Municipality,
Thiruthani,
Thiruvallur District.
4.The Executive Officer,
Thiruthani Municipality,
Thiruthani, Thiruvallur District.
https://www.mhc.tn.gov.in/judis
G.ARUL MURUGAN, J.
sri
21.10.2024
https://www.mhc.tn.gov.in/judis
