High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.12.2009CORAM:THE HON'BLE MR.JUSTICE D.HARIPARANTHAMANW.P.NO.49500 OF 2006(OA.No.1886/2001)R.M.Ramasamy...Petitioner Vs.1. Assistant Director of Local Fund Audit (Municipal Pension) Kuralagam, Chennai2. Commissioner of Karaikudi Municipality Karaikudi, Sivaganga District....RespondentsPRAYER: This Writ Petition came to be numbered under Article 226 ofthe Constitution of India by way of transfer of O.A.No.1886 of 2001,to call for the records of the first respondent herein passed in hisProceedings Ni.Mu.Na.O.Sa.(2)10536/2000 dated 24.03.2000 ordering therecovery of Rs.30,942/- from the petitioner's retirement benefits andconsequential proceedings of the second respondent herein issued inhis Na.Ka.No.B4/7888/99 dated 18.01.2001 re-fixing the pay of thepetitioner and the proceedings in Na.Ka.No.A4/7888/99 dated22.01.2001 reducing the petitioner's entire pension and retirementbenefits and quash the same.For Petitioner: Mr.RavishanmugamFor Respondents: Mrs.C.K.Vishnu Priya Additional Government Pleader For R-1 Mr.R.Sivakumar for R-2O R D E R The Original Application in O.A.No.1886 of 2001 before theTamil Nadu Administrative Tribunal is the present writ petition. 2. The petitioner joined as a Bill Collector in the secondrespondent Municipality on 06.11.1969. He retired from service on31.07.1999 on reaching the age of superannuation. While so, theimpugned order dated 24.03.2000 was passed by the first respondentdeducting a sum of Rs.30,942/- from the DCRG of Rs.1,05,994/-.Further, the second respondent passed an order dated 18.01.2001 re-fixing the pay of the petitioner with effect from 01.10.1983 and as https://hcservices.ecourts.gov.in/hcservices/ on 01.10.1998, re-fixed the pay at Rs.5000/- + 245/- instead ofRs.5100/- + 250/-. It is stated in the said order dated 18.01.2001that the excess payment made would be recovered from the DCRG. Thesecond respondent passed another order dated 22.01.2001 based on theaforesaid order dated 24.03.2000 of the first respondent deductingRs.30,942/- from DCRG. 3. Aggrieved by the same, the petitioner filed OriginalApplication in O.A.No.1886 of 2001 (W.P.NO.49500 of 2006) to quashthe aforesaid order dated 24.03.2000 of the first respondent and theorders dated 18.01.2001 and 22.01.2001 of the second respondent. 4. The first respondent filed reply affidavit stating thatthe recovery of Rs.30,942/- was to be made from the pensionarybenefits towards non-collection of time barred arrears ofprofessional taxes. It is also stated that the re-fixation of pay wasmade in the order dated 18.01.2001 by the second respondent and thepetitioner could not take any exception on the same.5. Heard Mr.Ravishanmugam, learned counsel for thepetitioner; Mrs.C.K.Vishnu Priya, learned Additional GovernmentPleader for the first respondent and Mr.R.Sivakumar, learnedGovernment Advocate for the second respondent.6. The learned counsel for the petitioner submits that therespondents could not order recovery of Rs.30,942/- from the DCRG forthe alleged non-collection of time barred arrears of professionaltaxes. The learned counsel for the petitioner has relied on adecision of this Court in V.Nagarajan V. Commissioner, SalemMunicipality, Salem reported in 1988 Writ L.R. 38 and according tothe learned counsel, the said judgment squarely applies to the factsof the case. It is also submitted that this Court followed the saidjudgment subsequently in various judgments.7. The learned counsel for the petitioner submits that thesecond respondent cannot issue the impugned order in 2001 after hisretirement on 31.07.1999 and re-fix his pay with effect from 1983after 18 years. It is further submitted that since the petitionerretired from service in July 1999, re-fixation of pay relating tomuch earlier period could not be done in view of the judgment of theDivision Bench of this Court in D.Palavesamuthu Vs. Tamil NaduAdministrative Tribunal, represented by its Registrar, Chennai andothers reported in (2006)1 M.L.J.143 . The learned counsel submitsthat the order of the second respondent dated 22.01.2001 orderingrecovery of Rs.30,942/- based on the order dated 24.03.2000 of thefirst respondent is also bad and illegal. It is further submittedthat nothing could be recovered from DCRG as per Rule 69 of the TamilNadu Pension Rules, which is applicable to the employees of thesecond respondent. https://hcservices.ecourts.gov.in/hcservices/

8. On the other hand the learned counsel for therespondents seeks to sustain the impugned order, particularly, basedon the reply affidavit filed by the first respondent.9. I have considered the submissions made on either side.As rightly contended by the learned counsel for the petitioner, therespondents could not effect recovery towards non-collection of timebarred professional taxes, as held by this Court in V.Nagarajan V.Commissioner, Salem Municipality, Salem reported in 1988 Writ L.R.38. The said judgment is extracted here-under:- "1. The petitioner is a Bill Collector of therespondent. He is being penalised and is being called uponto pay the profession taxes, on the ground, he allowed theircollection and recovery from the tax payers become time-barred. The view of this Court with regard to liability ofthe Bill Collector of a Municipality to recoup it on theallegation of his failure to collect the taxes and allowingthem to become time barred, has been expressed by Mohan, J.in A.Selvaraj and others v. The Commissioner, TiruvarurMunicipality, saying--"Having regard to these provisions, I find it ratherimpossible to appreciate the stand of the Municipality as tohow a Bill Collector could cause pecuniary loss to theMunicipality by his failure to collect the taxes. Firstly,it does not lie within his powers to allow the recovery oftaxes to become time barred. The very elaborate procedurerelating to collection of taxes mentioned in paragraph 65 ofthe Municipal Volume I would clearly indicate that it is theduty of the Executive Officer to have periodic verificationof the arrears. If he had failed to do the duty and therebythe arrears of tax had become time-barred for recovery, thatliability cannot be passed on to the Bill Collector."The above view has been followed by V.Ramaswami, J. ashe then was, in S.Nagarajan v. Commissioner ofRamanathapuram Municipality, by Padmanabhan, J. inS.Nagarajan v. Commissioner, Ramanathapuram Municipality,and by me in S.Srinivasan and others v. The Special Officer,Tiruvallur Municipality. My attention has not been drawn toany pronouncement of this Court, taking a contrary view. Therespondent in the present case seemed to have acted againstthe petitioner under the Tamil Nadu Municipal Service(Discipline and Appeal) Rules, but withheld recovery processon account of stay by the Government. Now, by virtue of theGovernment vacating the stay, the process of recovery fromthe salary of the petitioner is being set in motion by thepresent order of the respondent. It is only in that context,a writ of Mandamus is being asked for by the petitioner, toforbear the respondent from recovering from the salary ofthe petitioner, the time-barred profession taxes. Basically,there are no grounds at all to pin down the liability on the https://hcservices.ecourts.gov.in/hcservices/ petitioner, as now being done. The proceedings taken in thisbehalf are the result of a misconception of the legalposition. They have to stand ignored and cannot beimplemented. Taking note of the ratio of this Court, I haveto hold that the petitioner cannot be mulcted with liabilityon this account. In view of this, this writ petition is sofar as the petitioner is concerned, is allowed. No costs."10. In the said case, recovery was made from the salarytowards non-collection of time barred professional taxes. But in thepresent case, recovery was from DCRG. The said judgment squarelyapplies to the facts of this case and the impugned order dated24.03.2000 of the first respondent and the consequential order dated22.01.2001 of the second respondent ordering recovering ofRs.30,942/- from the DCRG is illegal and accordingly both the ordersare quashed to that extent. The re-fixation of pay was done by thesecond respondent vide impugned order dated 18.01.2001. The re-fixation relates back to 1983 i.e., the second respondent sought tore-fix the pay after 18 years, when the employee retired fromservice. In those circumstances, a Division Bench of this Court inD.Palavesamuthu Vs. Tamil Nadu Administrative Tribunal, representedby its Registrar, Chennai and others reported in (2006)1 M.L.J.143has held that such a re-fixation and consequent recovery is illegaland the relevant passage found in para 5 of the said judgment isextracted here-under:-"As rightly pointed out, the very same Tribunal has notaccepted the claim of the applicant/petitioner herein. Weare of the view that the course and method adopted by theTribunal cannot be appreciated in the case of thepetitioner. Even if it is accepted for the argument sakethat salary of the petitioner is fixed in a wrong scale ofpay, it is the fault committed by the Department and theirOfficers, for which the petitioner should not be penalisedafter a lapse of number of years that too after retirementof the petitioner."11. The recovery from DCRG is permissible in accordancewith Rule 69(1)(a)(b) of the Tamil Nadu Pension Rules only.With holding of DCRG would arise only pursuant to the decision in adisciplinary proceeding. Rule 69 (1) (a)(b) of the Tamil NaduPension Rules is extracted in this regard.69 (1)(a) in respect of a Government servant referred to insub-rule (4) of Rule 9, the Head of office shall pay theprovisional pension not exceeding the minimum pension whichwould have been admissible on the basis of qualifyingservice up to the date of retirement of the Governmentservant. https://hcservices.ecourts.gov.in/hcservices/ (b) No gratuity shall be paid to the Government servantuntil the conclusion of the departmental or judicialproceedings and issue of final orders thereon:[Provided that no such gratuity, shall be withheld inrespect of a Government servant who has been permitted toretire without prejudice to the departmental or judicialproceedings pending against him, where such departmental orjudicial proceedings are only for administrative lapses notinvolving any pecuniary loss to the Government.][Provided further that where a Government servant, againstwhom a departmental or judicial proceedings involvingpecuniary loss to Government is pending, is permitted toretire without prejudice to such departmental or judicialproceedings, a portion of gratuity may be authorized afterdeducting the maximum computed financial loss to theGovernment for which the Government servant is held liable,along with un-recovered Government dues if any, of suchGovernment servants, with interest.]12. Hence the recovery from DCRG is bad in view of judgmentreferred to above and Rule 69(1)(a)(b) of the Tamil Nadu PensionRules.13. In view of the categorical pronouncement of theDivision Bench of this Court, the impugned order dated 24.03.2000 ofthe first respondent and the consequential order of the secondrespondent dated 22.01.2001 ordering recovery of Rs.30,942/- from theDCRG is quashed to that extent and the other order dated 18.01.2001of the second respondent re-fixing the pay and ordering consequentrecovery is also quashed. 14. The writ petition is allowed on the above terms. Nocosts.Sd/Asst.Registrar/true copy/Sub Asst.Registrarrns https://hcservices.ecourts.gov.in/hcservices/ To1. The Assistant Director of Local Fund Audit (Municipal Pension) Kuralagam, Chennai.2. The Commissioner of Karaikudi Municipality Karaikudi, Sivaganga District.1 cc To M/s.Sudha Ravi Associates, Advocate, SR.71273.1 cc To The Government Pleader, SR.71738.1 cc To Mr.R.Sivakumar, Advocate, SR.71344.W.P.NO.49500 OF 2006 MSM(CO)RVL 18.01.2010