WP/44759/2016 of S.Chandramoorthy Vs The Secretary to Government on 29 December 2016

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 29.12.2016

CORAM

THE HONOURABLE MR.JUSTICE S.VAIDYANATHANW.P.No.44759 of 2016 and W.M.P.No.38587 of 2016

S.Chandramoorthy .. Petitioner-vs-1. The Secretary to Government, Home (Police II) Department, Fort Saint George, Chennai- 600 009.

2. The Director, Vigilance and Anti Corruption Chennai- 600 016. .. Respondents Petition filed under Article 226 of the Constitution ofIndia, seeking for a Writ of Certiorari, calling for the recordsof the respondents in connection with the impugned orders issuedby the 2[nd] respondent in Na.Ka.No.Oo1/38618/16 dated 21.12.2016and Rc.No.F1/38618/16 dated 21.12.2016 and quash the same.

For Petitioner : Mr.M.MuthappanFor Respondents : Mr.T.N.Rajagopalan Special Government Pleader The petitioner has come forward with this Writ Petition asthe petitioner was not given an opportunity before fixing therevision of pay and pay recovery order.

2. The case of the petitioner is that he was appointed inthe post of Junior Assistant in 1995 on compassionate groundsand was subsequently promoted as Assistant. One Mrs.Elizabeth,the immediate junior to the petitioner, who was working asSpecial Assistant, has given a letter opting for reversion tothe post of Assistant and permanently relinquished her right forpromotion. Her relinquishment was accepted and she was revertedto the post of Assistant. But her name was retained at the top

https://hcservices.ecourts.gov.in/hcservices/

in the seniority list of Assistant. The petitioner and similarlyplaced persons have given representations to revise theseniority list of the said Mrs.Elizabeth and also filed a WritPetition before this Court. This Court set aside the thenprevailing seniority list and directed the respondents to placeMrs.Elizabeth at the bottom of the seniority list of Assistant.During the pendency of the Writ Petition, Mrs.Elizabeth waspromoted as Superintendent and thereafter, the seniority list ofAssistant was revised and hence, Mrs.Elizabeth was placed at thebottom of the list and reverted to the post of Assistant.

3. The petitioner was promoted as Superintendent and his paywas fixed pursuant to the VI pay commission. The petitioner hasalso requested for revision of seniority list and promotion onpar with Mrs.Elizabeth and to notionally promote him asSuperintendent from 28.05.2009. The 2[nd] respondent revised thescale of pay of the petitioner, as it has been wrongly fixed anddirected to recover the amounts in 100 installments.

4. According to the petitioner, no show cause notice wasissued prior to revision of scale of pay as well as prior to payrecovery order. The petitioner's salary was revised pursuant tothe VI pay commission and the petitioner has not suppressed anymaterial facts. When the impugned order does not disclose as tohow the pay has been revised based on the audit objection, thepetitioner is entitled to salary of Superintendent from28.05.2009, on which date Mrs.Elizabeth was promoted. Pendinghis representation, the present impugned order has been passed.

5. In such circumstances, I am of the view that while thepetitioner was promoted from the post of Assistant to that ofSuperintendent and his pay being revised with effect from22.06.2009, by order dated 13.07.2009, it was made clear that,in future, if the fixation of pay was found to be wrong, theexcess pay will be recovered from the salary and credited to theGovernment. Knowing this fact well, the petitioner accepted hispromotion. The audit objection is also very clear that thepetitioner's pay has been wrongly fixed.

6. Though it is contended that the petitioner is entitled toquestion the above fact, the Apex Court in Syed Abdul Qadir Vs.State of Bihar reported in (2009) 3 SCC 475 held as follows:“...Undoubtedly, the excess amount that has been paidto the appellant teachers was not because of anymisrepresentation or fraud on their part and theappellants also had no knowledge that the amount thatwas being paid to them was more than what they wereentitled to. It would not be out of place to mentionhere that the Finance Department had, in its counter- affidavit, admitted that it was bona fide mistake ontheir part. The excess payment made was the result ofwrong interpretation of the rule that was applicableto them, for which the appellants cannot be heldresponsible. Rather, the whole confusion was becauseof inaction, negligence and carelessness of theofficials concerned of the Government of Bihar. Thelearned counsel appearing on behalf of the appellantteachers submitted that majority of the beneficiarieshave either retired or are on the verge of it. Keepingin view the peculiar facts and circumstances of thecase at hand and to avoid any hardship to theappellant teachers, we are of the view that norecovery of the amount that has been paid in excess tothe appellant teachers should be made.” (emphasissupplied)

7. The above cited judgment was considered and referred toin (2015) 4 Supreme Court Cases 334 [State of Punjab and othersVs. Rafiq Masih (White Washer) and others] wherein it was heldthat the benefit of non-recovery cannot be extended to anemployee, merely because, he was not accessory to mistakecommitted by the employer, or was not guilty of furnishing anyfactually incorrect information, or fraud or misrepresentation.In the above said decision, the Supreme Court has further statedas follows:

“...

18. It is not possible to postulate all situationsof hardship which would govern employees on the issueof recovery, where payments have mistakenly been madeby an employer, in excess of their entitlement. Bethat as it may, based on the decisions referred tohereinabove, we may, as a ready reference, summarisethe following few situations, wherein recoveries bythe 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 theemployees who are due to retire within one year, ofthe order of recovery.(iii) Recovery from employees, when the excesspayment has been made for a period in excess of fiveyears, before the order of recovery is issued.(iv) Recovery in cases where an employee haswrongfully been required to discharge duties of ahigher post, and has been paid accordingly, eventhough he should have rightfully been required to workagainst an inferior post.

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from theemployee, would be iniquitous or harsh or arbitrary tosuch an extent, as would far outweigh the equitablebalance of the employer's right to recover.”

8. The cases of recovery could be interfered only in caseswhere the Court has held in the earlier decision that if theemployee was not aware and not informed about the recovery inthe order, he is entitled to be heard. In the case on hand, thepetitioner is already aware of the fact that in case of wrongfixation of pay, the amount would be recovered. The relevantportion of the order dated 13.07.2009 is extracted hereunder:

“...

6. If the pay fixation is found to be wrong infuture, the excess paid pay and allowances will berecovered from the salary & credited to Governmentaccount.”

9. The Hon'ble Supreme Court in the case of High Court ofPunjab vs. Jagdev Singh (Civil Appeal No.3500 of 2006, dated29.07.2016) has held as follows:- ''7. The Respondent challenged the action forrecovery in writ proceedings under Article 226. Thepetition was allowed by the impugned judgment of theHigh Court. The High Court found substance in thegrievance of the Respondent that the excess paymentmade to him towards salary and allowance prior to hisretirement could not be recovered at that stage, therebeing no fraud or misrepresentation on his part.

8. The order of the High Court has been challengedin these proceedings. From the record of theproceedings, it is evident that when the Respondentopted for the revised pay scale, he furnished anundertaking to the effect that he would be liable torefund any excess payment made to him. In the counteraffidavit which has been filed by the Respondent inthese proceedings, this position has been specifically[1]admitted. Subsequently, when the rules were revisedand notified on 7 May 2003 it was found that a paymentin excess had been made to the Respondent. On 18February 2004, the excess payment was sought to berecovered in terms of the undertaking.

9. The submission of the Respondent, which foundfavour with the High Court, was that a payment whichhas been made in excess cannot be recovered from anemployee who has retired from the service of thestate. This, in our view, will have no application toa situation such as the present where an undertakingwas specifically furnished by the officer at the time when his pay was initially revised accepting that anypayment found to have been made in excess would beliable to be adjusted. While opting for the benefit ofthe revised pay scale, the Respondent was clearly onnotice of the fact that a future re-fixation orrevision may warrant an adjustment of the excesspayment, if any, made.

10. In State of Punjab & Ors etc. vs. Rafiq Masih(White Washer) etc. this Court held that while it isnot possible to postulate all situations of hardshipwhere payments have mistakenly been made by anemployer, in the following situations, a recovery bythe employer would be impermissible in law:

“(i) Recovery from employees belongingto Class-III and Class-IV service (or Group'C' and Group 'D' service).

(ii) Recovery from retired employees, oremployees who are due to retire within oneyear, of the order of recovery.

(iii) Recovery from employees, when theexcess payment has been made for a period inexcess of five years, before the order ofrecovery is issued.

(iv) Recovery in cases where an employeehas wrongfully been required to dischargeduties of a higher post, and has been paidaccordingly, even though he should haverightfully been required to work against aninferior post.

(v) In any other case, where the Courtarrives at the conclusion, that recovery ifmade from the employee, would be iniquitousor harsh or arbitrary to such an extent, aswould far outweigh the equitable balance ofthe employer's right to recover.” (emphasis supplied).

11. The principle enunciated in proposition (ii)above cannot apply to a situation such as in thepresent case. In the present case, the officer to whomthe payment was made in the first instance was clearlyplaced on notice that any payment found to have beenmade in excess would be required to be refunded. The officer furnished an undertaking while opting for therevised pay scale. He is bound by the undertaking.''

10. In the above judgment, it has been categorically statedthat when an undertaking is given by an employee, the employercan recover the amount, it is not necessary that there should bea separate undertaking. It is clear from the order dated13.07.2009 that the petitioner was aware of the fact that incase of wrong fixation of pay, the same would be recovered andhence, this Court is not inclined to accept the contention ofthe petitioner that he should be given an opportunity ofhearing. In case of wrong fixation genuinely made without thefault of the employer, the same can be recovered. Otherwise, itwould become a wrong precedence to other employees to claimsimilar benefits on the ground that the counter-part has beengiven higher wages and hence, they should also be given thesame. In such view of the matter, this Court is not inclined tointerfere in the order passed by the 2[nd] respondent.

11. The Writ Petition is dismissed. No costs. Consequently,the connected miscellaneous petition is closed.

Sd/-

Assistant Registrar

//True Copy//

To:

Sub Assistant Registrar

1. The Secretary to Government, Home (Police II) Department, Fort Saint George, Chennai- 600 009.

2. The Director, Vigilance and Anti Corruption Chennai- 600 016.

+1cc to the Government Pleader, S.R.No.9

ppa(CO)md(02/02/2017)

W.P.No.44759 of 2016 andW.M.P.No.38587 of 2016