red the law laid down by the Hon'ble Supreme Court in, State of Punjab v. Rafiq Masih

W.P.No.18573 of 2016IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29.01.2024CORAM : THE HONOURABLE DR. JUSTICE D.NAGARJUN W.P.No.18573 of 2016andW.M.P.Nos.16278 and 16279 of 2016V.Ranganathan ... PetitionerVs.1.The Director/Commissioner of Municipal Administration,No.71, Urban Administrative Building, Santhome High Road, MRC Nagar, Raja Annamalaipuram, Chennai - 600 028.2.The Commissioner3rd Grade Municipality,Edangannasalai, Sangagiri Taluk, Salem District....Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, to issue a writ of certiorarified mandamus, calling for the records relating to the proceedings of the second respondent issued in Na.Ka.No.426/2015/A1 dated 14.07.2015 and quash the same and consequently to restore pay salary as per the proceedings of the second respondent dated 08.04.2013 issued in Na.Ka.No.79/2013 by refunding the already recovered amount from the petitioner till the restoration of original pay.Page No.1 of 9 https://www.mhc.tn.gov.in/judis W.P.No.18573 of 2016For petitioner : Mr.P.I.ThirumoorthyFor respondents: Mr.Sanjai Gandhi Additional Government pleader O R D E RThis writ petition is filed seeking for a certiorarified mandamus directing the respondents to quash the proceedings of the second respondent in Na.Ka.No.426/2015/A1 dated 14.07.2015 and quash the same and consequently to restore pay as per the proceedings of the second respondent dated 08.04.2013 issued in Na.Ka.No.79/2013 by refunding the already recovered amount from the petitioner till the restoration of original pay.2.The petitioner was working in the town Panchayat as a Pipe Line Fitter, which is one of the trade posts. He has required qualification including I.T.I. The post of Pipe Line Fitter is governed by Tamil Nadu Town Panchayat Establishment Rules, 1988 and the said rules were framed under the provisions of Tamil Nadu Panchayat Act, 1958. The petitioner being employed as a Pipe Line Fitter was entitled for a basic pay Page No.2 of 9 https://www.mhc.tn.gov.in/judis W.P.No.18573 of 2016of Rs.4000-100-6000. The first respondent had sanctioned a post of Pipe Line Fitter in the second respondent Town Panchayat. The petitioner was appointed in the said post through employment exchange on consolidated pay, initially for a period of three years from 13.07.2001 interms of the G.O.Ms.No.72 MAWSS , dated 05.05.1998. The petitioner joined duty on the said date has completed three years of service on 12.06.2004, thereby he is entitled for regularization of service. Instead of regularizing the services from 12.06.2004 the services of the petitioner were regularized have been regularized from 23.06.2006 vide proceedings dated 10.08.2006. The petitioner challenged the same in W.P.No.1303 of 2012 seeking for retrospective regularization and the same was allowed by this Court with a direction to bring the petitioner in the time scale of pay with retrospective effect from 12.06.2004. Accordingly, the petitioner was brought under regular time scale w.e.f. 12.06.2004 as per proceedings dated 08.04.2013 issued in Na.Ka.No.79 of 2013 and his pay scale was fixed as Rs.4000-100-6000. 3.It is submitted by the learned counsel for the petitioner that the respondent without issuing any notice or memo has revised and reduced the petitioner's pay and consequently ordered for recovery. The Page No.3 of 9 https://www.mhc.tn.gov.in/judis W.P.No.18573 of 2016respondent has not conducted any enquiry, no material was supplied to the petitioner prior cancellation of the pay which was fixed by the second respondent in proceedings dated 14.07.2015 issued in Na.Ka.No.426/2015/A1 earlier. The petitioner was ordered to pay a sum of Rs.4,32,914/- . Therefore, the petitioner's pay was reduced to a tune of Rs.4,500/- per month. Aggrieved by the same, the present writ petition is filed.4.The learned Additional Government Pleader submitted that the pay of the petitioner was fixed incorrectly and thereby, excess amount was paid to the petitioner. Therefore, the respondents have issued impugned proceedings canceling the earlier pay fixation and ordered for recovery of the same.5.The petitioner has filed a copy of the orders passed by this Court in similarly placed circumstances dated 01.02.2022 in W.P.No.12891 of 2015 and also referred the law laid down by the Hon'ble Supreme Court in, State of Punjab and others vs. Rafiq Masih, 2015 (5) CTC 455, the relevant portion of which runs as under:Page No.4 of 9 https://www.mhc.tn.gov.in/judis W.P.No.18573 of 2016"4.The Hon'ble Supreme Court in the case of White Washer (supra), has categorically held that recovery from employees, particularly when the mistake of excess payment was on the part of the employer, is impermissible in law. The relevant portion of the order reads as follows:-"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 a ready reference, summaries 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.(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 Page No.5 of 9 https://www.mhc.tn.gov.in/judis W.P.No.18573 of 2016arrives 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.The petitioner has challenged this writ petition on the ground that principles of natural justice have not been followed prior to issuance of the impugned order. Admittedly, the impugned orders have been passed by the respondents without giving any notice, without asking for any reply or clarification and also without conducting any enquiry as to whether excess amount was paid to the petitioner while fixing the salary. The respondents should have given notice and after hearing the petitioner, the respondents should have passed the impugned order for recovery of excess salary, if any.6.The learned Additional Government Pleader at this stage submitted that the respondents be permitted to make fresh enquiry by issuing proper notice to the petitioner. The request of the learned Additional Government Pleader is recorded. 7.Accordingly this writ petition is disposed of setting aside the Page No.6 of 9 https://www.mhc.tn.gov.in/judis W.P.No.18573 of 2016impugned orders dated 14.07.2015 in Na.Ka.No.426/2015/A1 and the respondents are at liberty to initiate the steps for fixation of pay of the petitioner afresh by following the due procedure of law. Connected W.M.Ps are closed. No costs.29.01.2024vcaInternet:Yes/NoIndex:Yes/NoCitation:Yes/NoTo:1.The Director/Commissioner of Municipal Administration,No.71, Urban Administrative Building, Santhome High Road, MRC Nagar, Raja Annamalaipuram, Chennai - 600 028.2.The Commissioner3rd Grade Municipality,Edangannasalai, Sangagiri Taluk, Salem District.Page No.7 of 9 https://www.mhc.tn.gov.in/judis W.P.No.18573 of 2016DR. D.NAGARJUN,J. vca W.P.No.18573 of 2016andW.M.P.Nos.16278 and 16279 of 2016Page No.8 of 9 https://www.mhc.tn.gov.in/judis W.P.No.18573 of 201629.01.2024Page No.9 of 9

W.P.No.18573 of 2016IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29.01.2024CORAM : THE HONOURABLE DR. JUSTICE D.NAGARJUN W.P.No.18573 of 2016andW.M.P.Nos.16278 and 16279 of 2016V.Ranganathan ... PetitionerVs.1.The Director/Commissioner of Municipal Administration,No.71, Urban Administrative Building, Santhome High Road, MRC Nagar, Raja Annamalaipuram, Chennai - 600 028.2.The Commissioner3rd Grade Municipality,Edangannasalai, Sangagiri Taluk, Salem District....Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, to issue a writ of certiorarified mandamus, calling for the records relating to the proceedings of the second respondent issued in Na.Ka.No.426/2015/A1 dated 14.07.2015 and quash the same and consequently to restore pay salary as per the proceedings of the second respondent dated 08.04.2013 issued in Na.Ka.No.79/2013 by refunding the already recovered amount from the petitioner till the restoration of original pay.Page No.1 of 9 https://www.mhc.tn.gov.in/judis W.P.No.18573 of 2016For petitioner : Mr.P.I.ThirumoorthyFor respondents: Mr.Sanjai Gandhi Additional Government pleader O R D E RThis writ petition is filed seeking for a certiorarified mandamus directing the respondents to quash the proceedings of the second respondent in Na.Ka.No.426/2015/A1 dated 14.07.2015 and quash the same and consequently to restore pay as per the proceedings of the second respondent dated 08.04.2013 issued in Na.Ka.No.79/2013 by refunding the already recovered amount from the petitioner till the restoration of original pay.2.The petitioner was working in the town Panchayat as a Pipe Line Fitter, which is one of the trade posts. He has required qualification including I.T.I. The post of Pipe Line Fitter is governed by Tamil Nadu Town Panchayat Establishment Rules, 1988 and the said rules were framed under the provisions of Tamil Nadu Panchayat Act, 1958. The petitioner being employed as a Pipe Line Fitter was entitled for a basic pay Page No.2 of 9 https://www.mhc.tn.gov.in/judis W.P.No.18573 of 2016of Rs.4000-100-6000. The first respondent had sanctioned a post of Pipe Line Fitter in the second respondent Town Panchayat. The petitioner was appointed in the said post through employment exchange on consolidated pay, initially for a period of three years from 13.07.2001 interms of the G.O.Ms.No.72 MAWSS , dated 05.05.1998. The petitioner joined duty on the said date has completed three years of service on 12.06.2004, thereby he is entitled for regularization of service. Instead of regularizing the services from 12.06.2004 the services of the petitioner were regularized have been regularized from 23.06.2006 vide proceedings dated 10.08.2006. The petitioner challenged the same in W.P.No.1303 of 2012 seeking for retrospective regularization and the same was allowed by this Court with a direction to bring the petitioner in the time scale of pay with retrospective effect from 12.06.2004. Accordingly, the petitioner was brought under regular time scale w.e.f. 12.06.2004 as per proceedings dated 08.04.2013 issued in Na.Ka.No.79 of 2013 and his pay scale was fixed as Rs.4000-100-6000. 3.It is submitted by the learned counsel for the petitioner that the respondent without issuing any notice or memo has revised and reduced the petitioner's pay and consequently ordered for recovery. The Page No.3 of 9 https://www.mhc.tn.gov.in/judis W.P.No.18573 of 2016respondent has not conducted any enquiry, no material was supplied to the petitioner prior cancellation of the pay which was fixed by the second respondent in proceedings dated 14.07.2015 issued in Na.Ka.No.426/2015/A1 earlier. The petitioner was ordered to pay a sum of Rs.4,32,914/- . Therefore, the petitioner's pay was reduced to a tune of Rs.4,500/- per month. Aggrieved by the same, the present writ petition is filed.4.The learned Additional Government Pleader submitted that the pay of the petitioner was fixed incorrectly and thereby, excess amount was paid to the petitioner. Therefore, the respondents have issued impugned proceedings canceling the earlier pay fixation and ordered for recovery of the same.5.The petitioner has filed a copy of the orders passed by this Court in similarly placed circumstances dated 01.02.2022 in W.P.No.12891 of 2015 and also referred the law laid down by the Hon'ble Supreme Court in, State of Punjab and others vs. Rafiq Masih, 2015 (5) CTC 455, the relevant portion of which runs as under:Page No.4 of 9 https://www.mhc.tn.gov.in/judis W.P.No.18573 of 2016"4.The Hon'ble Supreme Court in the case of White Washer (supra), has categorically held that recovery from employees, particularly when the mistake of excess payment was on the part of the employer, is impermissible in law. The relevant portion of the order reads as follows:-"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 a ready reference, summaries 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.(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 Page No.5 of 9 https://www.mhc.tn.gov.in/judis W.P.No.18573 of 2016arrives 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.The petitioner has challenged this writ petition on the ground that principles of natural justice have not been followed prior to issuance of the impugned order. Admittedly, the impugned orders have been passed by the respondents without giving any notice, without asking for any reply or clarification and also without conducting any enquiry as to whether excess amount was paid to the petitioner while fixing the salary. The respondents should have given notice and after hearing the petitioner, the respondents should have passed the impugned order for recovery of excess salary, if any.6.The learned Additional Government Pleader at this stage submitted that the respondents be permitted to make fresh enquiry by issuing proper notice to the petitioner. The request of the learned Additional Government Pleader is recorded. 7.Accordingly this writ petition is disposed of setting aside the Page No.6 of 9 https://www.mhc.tn.gov.in/judis W.P.No.18573 of 2016impugned orders dated 14.07.2015 in Na.Ka.No.426/2015/A1 and the respondents are at liberty to initiate the steps for fixation of pay of the petitioner afresh by following the due procedure of law. Connected W.M.Ps are closed. No costs.29.01.2024vcaInternet:Yes/NoIndex:Yes/NoCitation:Yes/NoTo:1.The Director/Commissioner of Municipal Administration,No.71, Urban Administrative Building, Santhome High Road, MRC Nagar, Raja Annamalaipuram, Chennai - 600 028.2.The Commissioner3rd Grade Municipality,Edangannasalai, Sangagiri Taluk, Salem District.Page No.7 of 9 https://www.mhc.tn.gov.in/judis W.P.No.18573 of 2016DR. D.NAGARJUN,J. vca W.P.No.18573 of 2016andW.M.P.Nos.16278 and 16279 of 2016Page No.8 of 9 https://www.mhc.tn.gov.in/judis W.P.No.18573 of 201629.01.2024Page No.9 of 9