Madras High Court
R.Govindasamy vs The State Rep. By on 19 October, 2024
W.P.No.35205 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.10.2024
CORAM
THE HONOURABLE MR.JUSTICE G.ARUL MURUGAN
W.P.No.35205 of 2015 and
M.P.No.1 of 2015 and
W.M.P.No.1341 of 2017
R.Govindasamy ... Petitioner
Vs
1.The State rep. by
The Secretary to Government,
Department of Home (Prisons),
Secretariat, Fort St.George,
Chennai 09.
2.The Inspector General of Prisons cum
Additional Director General of Prisons,
Department of Prisons,
Thalamuthu – Natarajan Maligai,
Egmore, Chennai 08.
3.The Superintendent of Prisons,
Central Prisons of Trichy,
Trichy 20. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, praying to issue a Writ of Certiorari to call for the records made in
impugned order No. 21098/KISIU/2015 dated 22.07.2015 on the file of
third respondent herein and quash the same as illegal.
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1/10
W.P.No.35205 of 2015
For Petitioner : Mr.Ilayaraja Kandasamy
For Respondents : Mr.Stalin Abimanyu,
Additional Government Pleader.
ORDER
The writ petition has been filed challenging the order of the third
respondent dated 22.07.2015 whereby the pay was re-fixed with effect
from 01.07.2006 and also for recovery of the excess Pay and Dearness
Allowance paid from 01.01.2007.
2. It is the case of the petitioner that he was appointed as a Warden
of Prisons Department on 18.10.1983, thereafter promoted as Grade I
Warden No.II on 24.01.2005 and further he was promoted to Chief Head
Warden on 18.01.2015. The petitioner had retired from service on
31.08.2015. The petitioner and his colleague, one Natarajan, got
promotion on 18.01.2015 however, there was a difference in pay scale
between them, even though they were in same cadre. It is the grievance of
the petitioner that even though one Selvaraj was junior to him, the pay
scale was equally fixed. Subsequently, the third respondent by the
impugned order, relied on one-man commission report and had reduced
the pay scale of the petitioner. Thereby, the petitioner has preferred the
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present writ petition.
3. Mr.Stalin Abhimanyu, learned Government Pleader appearing
for the respondents relying upon the averments in the counter affidavit
submitted that the pay scale of the petitioner was fixed by taking into
account the date of promotion in respect of several other persons
including petitioner. Subsequently, the authorities had considered the
correct date of promotion and accordingly fixed the corresponding pay
scale. In view of the above, the rectification of the pay anomaly with
effect from 01.01.2006 was made pursuant to G.O.Ms.25 Personnel and
Administrative Reforms (FR.IV) Department dated 23.03.2015. The pay
scale fixed by the petitioner was revised and the excess amount paid
pursuant to the re-fixation has been sought to be recovered and therefore
it is perfectly justified.
4. Further, in paragraph 5 of the counter affidavit, it is explained
how the re-fixation has been done and in pursuant to the re-fixation with
effect from 01.07.2006, it has been calculated that a sum of Rs.66,638/-
has been excessively paid including Dearness Allowance for the period
from 01.01.2007 to 31.08.2015 and the same is sought to be recovered
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from the DCRG amount. In paragraph 3 of the counter affidavit, the
respondents have furnished the details in respect of the re-fixation of the
petitioner. The relevant paragraph is extracted hereunder:
“5. With regard to the averments made in paragraph 5
and 7 of the affidavit, it is submitted that the petitioner's pay
fixed on par with Tr.M.Selvaraj, Grade I Warder as per the
Superintendent of Prisons, Central Prison, Trichy Proceedings
No.15958/SJA/2009 dated 21.12.2009 in the new pay
commission scale of pay of Rs.5200-20200+ Grade Pay
Rs.2800 with effect from 01.07.2006 which is not in order and
directed to revise the fixation of pay by the Accountant
General, Chennai similar to that of a case of
Tr.G.Ramachandran, Grade I Warder who voluntarily retired
on 31.05.2010 while sending the pension proposal and hence
the pay of Tr.M.Selvaraj, Grade I Warder was revised with
effect from 01.01.2006 taking into account the new scale of pay
of Rs.5200-20200+Grade Pay Rs.2600 since the incumbent
was in the post of Grade II Warder (Special Grade) as on
01.01.2006. Accordingly, revised proceedings issued in
No.8698/G1/2015 dated 29.06.2015 of the Superintendent,
Central Prison, Trichy and the excess paid pay and Dearness
Allowance for the period from 01.03.2011 to 30.06.2015
arrived @ Rs.29136/- being recovered from his pay for the
month of July 2015 onwards. Likewise, the pay of
Tr.K.Natarajan, Chief Head Warder revised with effect from
01.07.2006 taking into account the new scale of pay of
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Rs.5200-20200+Grade Pay Rs.2600 since the incumbent was
in the post of Grade II Warder (Special Grade) as on
01.01.2006. Accordingly, revised proceedings issued in
No.8698/G1/2015 dated 10.07.2015 by the Superintendent,
Central Prison, Trichy and the excess paid Pay and Dearness
Allowance for the period from 01.03.2011 to 30.06.2015
arrived @ Rs.26558/- being recovered from his pay for the
month of July 2015 onwards. In the same manner, the
petitioner's pay re-fixed with effect from 01.07.2006 and the
excess paid Pay and Dearness Allowance for the period from
01.01.2007 to 31.08.2015 arrived @ Rs.66638/- and recovered
from the DCRG amount. Therefore, the contention of the
petitioner that the excess recovery made for his case only is not
correct and unacceptable.”
5. Heard both sides. Perused the material available on record.
6. Though the petitioner has not substantiated any irregularities or
error in the re-fixation of the pay scale made in favour of the petitioner, it
is evident from the impugned order that a sum of Rs.66,638/- is sought to
be recovered from DCRG amount pursuant to the re-fixation. This pay
and the Dearness Allowance have been paid to the petitioner by the
respondents based on their own calculations and not due to any
misrepresentation or fault on the part of the petitioner.
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7. It is also a settled position that any amount paid in excess due to
wrong calculations by the respondents cannot be recovered from an
employee who has retired or is due to retire within a year. In this regard,
the Hon'ble Supreme Court in the case of State of Punjab v. Rafiq Masih
(White Washer) reported in (2015) 4 SCC 334 had held that the recovery
of any amount from an employee who has retired or is due to retire within
a year is impermissible. The relevant portion of the judgment is extracted
hereunder:
“12. 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.
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(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.”
8. Admittedly, in this case, the petitioner has superannuated on
31.08.2015 and the impugned order re-fixing the pay scale has been
issued on 22.07.2015 within one year prior to the date of superannuation
of the petitioner. In view of the impugned order pertaining to recovery at
the verge of retirement, the above referred decision in White Washer case
is squarely applicable to the facts of this case. Further, in view of the
above decision, recovery cannot be made in respect of any payments
made in excess of five years.
9. In light of the above, while sustaining the impugned order in
respect of re-fixation of the pay scale, the portion of the order directing
the recovery of the excess amount paid alone shall stands quashed. In the
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event that the respondents have acted upon this order and made any
recovery, the same shall be repaid to the petitioner within a period of
twelve weeks from the date of receipt of a copy of this order.
10. In view of the above, the writ petition stands partly allowed. No
costs. Consequently, connected miscellaneous petitions are closed.
19.10.2024
Speaking (or) Non Speaking Order
Index : Yes/ No
shk
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To
1.The Secretary to Government,
Department of Home (Prisons),
Secretariat, Fort St.George,
Chennai 09.
2.The Inspector General of Prisons cum
Additional Director General of Prisons,
Department of Prisons,
Thalamuthu – Natarajan Maligai,
Egmore, Chennai 08.
3.The Superintendent of Prisons,
Central Prisons of Trichy,
Trichy 20.
https://www.mhc.tn.gov.in/judis
G.ARUL MURUGAN, J.
shk
W.P.No.35205 of 2015 and
M.P.No.1 of 2015 and
19.10.2024
https://www.mhc.tn.gov.in/judis
