Madras High Court

M.Manoharan vs The Managing Director on 20 March, 2025

                                                                                      WP(MD) No.8463 of 2019


                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED : 20.03.2025

                                                       CORAM:

                                  THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN

                                           WP(MD) No.8463 of 2019
                                                   and
                                           WMP(MD) No.6630 of 2019


                     M.Manoharan                                                      .. Petitioner

                                                             Vs.

                     1.The Managing Director,
                       Tamil Nadu State Transport Corporation (Madurai)Ltd.,
                       Byepass Road,
                       Madurai - 16.

                     2.The General Manager,
                       Tamil Nadu State Transport Corporation (Madurai) Ltd.,
                       Dindigul Region,
                       Dindigul - 4.

                     3.The Assistnat Manager,
                       Tamil Nadu State Transport Corporation (madurai) Ltd.,
                       Dindigul Region,
                       Dindigul - 4.                                .. Respondents




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                                                                                            WP(MD) No.8463 of 2019


                     Prayer: Petition filed under Article 226 of the Constitution of India,
                     praying for issuance of Writ of Certiorarified Mandamus calling for the
                     records connected with the impugned order of recovery passed by the
                     second respondent in Paravai CES/DGL/RO/561 dated 10.01.2023 and
                     quash the same and consequently direct the respondents to release and
                     refund the withheld amount of Rs.1,98,339/- effected from the Terminal
                     Benefits of the petitioner along with the interest at the rate of 18
                     percentage per annum.
                     (Prayer amended vide Court order dated 17.10.2024 in WMP.(MD).No.
                     3064 of 2023 in WP.(MD).No.8463 of 2019 by AQJ)


                                       For Petitioner        :         Mr.S.Govindan

                                       For Respondent        :         Mr.J.Senthil Kum

                                                                 ORDER

Under assail is the order passed by the second respondent dated

10.01.2023.

2. The case of the petitioner is that the writ petitioner was

dismissed from service and again he had raised an industrial dispute in

ID.No.13 of 2024, the Labour Court order dated 10.09.2008 set aside the

order of dismissal and directed the respondent corporation to reinstate

into service.

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3. The management has preferred a writ petition in WP.No.1273 of

2009 and vide letter order dated 16.04.2014 dismissed the writ petition.

The said order was not complied with and he has filed a contempt

petition in Cont.P.No.1502 of 2014 and while hearing the condone

petition the respondent agreed to settle benefits and sought for time to

balance terminal benefits and based on the undertaking given by the

respondents, the contempt petition was closed on 10.08.2015.

4. The writ petitioner filed WP(MD).No.20910 of 2018, vide order

dated 05.10.2018, this Hon'ble Court directed the respondents to settle

the pension and other benefits in twelve equal instalments, the first

instalment to commence from 2018 onwards. The said order was not

complied with the writ petitioner had filed a Cont.P.No.04 of 2019 and

subsequently the petition came to be closed.

5. The respondents instead of complying the order passed in

W.P.No.20910 of 2018, they sent a communication on 07.02.2019

directing him to pay the amount of Rs.1,98,339/- alleging excess

payment. He sent a legal notice on 16.02.2019 to stop recovery without

considering the same, the 3rd respondent had sent another communication

on 23.03.2019 compelling the petitioner to forcefully accept for recovery

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of Rs.1,98,339/-. The respondent had sanctioned reduced pension of Rs.

8600/-. He retired on 31.03.2014. Hence this writ petition.

5(i). During the pendency of the writ petition vide order dated

09.12.2022, this Court has issued an interim direction for observation

home in the following terms:-

“The impugned order that is challenged before this Court is only a notice directing the petitioner to appear in person. The learned Counsel appearing for the petitioner submitted that the notice only states to appear, but the petitioner is not aware of what purpose the amount of Rs.1,98,339/- is being withhold. Therefore, this Court is inclined to grant interim direction, directing the petitioner to appear before the respondents on 19.12.2022 in Dindigul. The respondents shall complete the enquiry within a period of four weeks from today and report the same before this Court on 23.01.2023.

2. Post the case on 23.01.2023.”

6. Subsequently the petitioner filed a miscellaneous petition in

WMP(MD).No.3064 of 2023 to challenge the subsequent order

impugned dated passed by the third respondent, the said petition was

allowed on 17.10.2024. Thereafter the prayer in this petition has been

amended.

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7. The learned counsel appearing for the writ petitioner would

submit that there was no misrepresentation or otherwise on the part of the

petitioner and the excess pay has been granted to the writ petitioner

cannot be recovered from him, to strengthen his contention, he has relied

upon the judgment of the Hon'ble Supreme Court reported in [2015 4

SCC 334] in the case of State of Punjab and others Vs. Rafiq

Masih (White Washer) etc. to show that the recovery from the

employee when the payment has been made for a period in excess after

five years cannot be recovered from the employee, he also relied upon

the judgment reported in [2024 (5) CTC 433] in the case of Jagdish

Prasad Singh Vs. State of Bihar and Ors. to show that reducing the pay

scale without affording any opportunity to the employee.

8. Per-contra, the learned counsel appearing for the third

respondent would submit that during the pendency of the contempt

petition, Cont.P.No.1502 of 2014, the respondent-management without

proper consideration of the Labour Court Award, the management

inadvertently fixed the writ petitioner's salary basic Rs.11,950/- + Grade

pay Rs.2,200/- instead of Salary basic Rs.10,245/- + Grade Pay Rs.

2,000/- and disbursed the benefits to the petitioner. Thereafter, on

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verification, it revealed that the Labour Court in its Award granted only

reinstatement and denied the other benefits and the same was also

confirmed by this Court in WP(MD).No.1273 of 2009.

9. He would submit that that excess payment made to the petitioner

has to be recovered, to strengthen his contentions he has relied upon the

judgment of this court in [WP(MD).No.17123 of 2015 dated 03.02.2022]

in the case of the R.Aundichamy Vs. General Manager, Tamil Nadu

State Transport Corporation, Dindigul Division, Dindigul and Ors to

show that the employee is bound to pay the illegal amount in his hands.

He would submit that in the above order this Hon'ble Court has clearly

distinguished the judgment of white washer case and also considered the

another judgment of the High Court of Punjab and Haryana and others

Vs. Jagdev Singh reported in [2016 14 SSC 2007]. He would submit that

there is no impediment in the recovery order.

10. This Court considered the submissions made on either side and

it is seen from the records that the petitioner was dismissed from service

against which he has preferred an industrial dispute ID.No.13 of 2004

before the Labour Court, Madurai. The Labour Court vide order dated

10.09.2008, set aside the order of dismissal from service and directed to

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reinstate in service with continuity of service without backwages.

Aggrieved over the same, the respondent-management challenged the

award of Labour Court in ID No.13 of 2004 before this court in

WP(MD).No.1273 of 2009. Thereafter, the contempt petition came to be

filed in Cont.P(MD).No.1502 of 2014, while hearing the contempt

petition vide order dated 10.08.2015, the respondent/transport

corporation is directed to settle the 75% of the terminal benefits to the

petitioner in ten instalments commencing from October 2015.

11. It is also observed that retirement benefits of the petitioner are

directed to be settled by way of ten installments and the first instalment

to be paid from October 2025 and each of the instalment on or before 7th

of every month. Thereafter the writ petitioner has filed a WP(MD) No.

20910 of 2018 directing the respondent corporation to settle the

pensionary benefits with a condition that of pension from the date of his

retirement i.e., 01.04.2015 along with 18 % for the belated payment of

pension benefits. This Court vide letter dated 09.10.2018 in

WP(MD).No.20910/2018 has passed the follow order:-

“4.When the matter is taken up for hearing, the learned counsel appearing for the respondents would submit that the respondents are ready to pay

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pensionary benefits in 12 equal monthly installments commencing from the First December 2018 together with interest at 6% p.a.

5.In view of the above said submission, the respondents are directed to pay pensionary benefits due to the petitioner in 12 equal monthly instalments.

The first instalment shall be commenced from October 2018 onwards and the same shall be paid on or before 10th of every subsequent months. For the month of October 2018 alone the pensionary benefit has got to be paid on or before 2nd November 2018.”

12. It is seen from the records thereafter, the respondent

corporation has issued letter dated 23.03.2019 calling upon the writ

petitioner to give consent of recovery of Rs.1,98,339/- allegedly to have

been paid in excess. The same order impugned came to be challenged by

way of this writ petition. While pending the writ petition by an order of

interim direction as given vide order dated 09.12.2022, directing the

petitioner to appear before the respondent on 09.12.2022 and the

respondent shall complete the enquiry within a period of foru weeks and

in compliance of the directions, this Court's subsequent order came to be

passed on 10.01.2023.

13. The order impugned is confirmed, the earlier notice issued by

the respondent-corporation and order to recover the amount of Rs.

1,98,339/- allegedly said to have been paid in excess. It is not in dispute

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that the writ petitioner has preferred for non-compliance of the payment

of the pensionary benefits. He chosen to file WP(MD).No.20910 of 2018.

14. A bare perusal of the order impugned shows that on the part of

the writ petitioner there was no misrepresentation or otherwise. However

excess payment of Rs.1,98,339/- was ordered for recovery. The Labour

Court Award was issued on 10.01.2008 after lapse of more than a decade

and after his retirement dated 31.03.2014 after lapse of nine years, the

order impugned notice has been issued. However the excess payment

already paid to the petitioner cannot be recovered, this Court is of the

opinion that there is no impediment to correct the errors in respect of

fixation of pay. In this regard, Hon'ble Apex Court of India also

enumerated the legal principles in the case of State of Punjab Vs. Rafiq

Masih reported in [(2015) 4 Supreme Court Cases 334] in paragraph

number eighteen of the judgment is relevant and the same 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 hereinabove, we may, as a ready reference, summarize the following few situations, wherein

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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 iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.”

15. The writ petitioner is a retired employee and the impugned

order of recovery after lapse of nine years from the date of his retirement,

there is no misrepresentation on the part of the writ petitioner and the

recovery imposed is in violation of legal principles. However it is made

clear that the scale of as applicable and the revision of pension as per the

government orders in force can be granted to the writ petitioner and if

any mistakes had occurred, the same can be corrected by the Competent

Authority. However the recovery cannot be made. Accordingly the

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impugned order passed by the third respondent through proceedings in

Paravai CES/DGL/RO/561 dated 10.01.2023, in respect of recovery