Madras High Court
P.Murugaiah vs The Government Of Tamil Nadu on 2 August, 2022
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
W.P.No.30873 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :02.08.2022
CORAM :
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
Writ Petition No.30873 of 2014
&
M.P.Nos. 1 & 2 of 2014
P.Murugaiah ... Petitioner
-Vs-
1. The Government of Tamil Nadu,
Rep by its Principal Secretary Finance (Pay Cell) Department,
Fort St.George,
Chennai-600 009.
2. The Director,
Department of Agriculture,
Chepauk, Chennai-600 005.
3. The Director,
Department of Agriculture Marketing and Agri Business,
Guindy, Chennai-600 032 ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Certiorarified Mandamus, calling
for the records pertaining to the impugned letter bearing
No.Ve.A.Pa..1/154665/2013 dated 25.4.2014 issued by the second
respondent pursuant to the audit objection and quash the same and
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W.P.No.30873 of 2014
consequently direct to continue to pay the existing scale of pay as fixed
the respondents as per the fitment table 16 of the letter bearing
No.51082/pay cell/2010-1 dated 15.09.2010 issued by the first
respondent.
For Petitioner : Mrs.K.Shanthi for
Mr.U.Karunakaran
For Respondents : Mr. L.S.M.Hasan Fizal
Additional Government Pleader
ORDER
The revision of scale of pay and consequential recovery, are sought to be quashed in the present Writ Petition.
2. The writ petitioner was appointed as Assistant Agriculture Officer, subsequently promoted as Assistant Seed Officer. The petitioner was further promoted to the post of Agriculture Officer and he retired from service on 31.01.2011 on attaining the age of superannuation. The pay of the writ petitioner was fixed in the post of Agriculture Officer. Pursuant to the Tamil Nadu Revised Scales of Pay Rules, 2009, the petitioner also exercised the post under the pay rules of the year 2009. The petitioner was granted revision of scale of pay and subsequently https://www.mhc.tn.gov.in/judis 2/14 W.P.No.30873 of 2014 there was an audit objection in respect of the pay fixation and consequently, the recovery was imposed.
3. The learned counsel for the petitioner mainly contended that there was no error in re-fixation of pay and therefore, the recovery is also liable to be set aside. The fixation was done in accordance with the Government Orders in force and the petitioner was receiving the salary as per the pay fixation Rules of the year 2009 and thus, there is no infirmity in respect of the fixation done during the relevant point of time.
4. The learned Additional Government Pleader appearing on behalf of the respondents brought to the notice of this Court that no order of recovery has been passed. The petitioner has filed the Writ Petition challenging the very audit objection, which was not officially communicated to the writ petitioner. The impugned order reveals that the Deputy Director of Agriculture, informed about the audit objection and the said copy of the proceedings were not even communicated to the writ petitioner. Thus, the respondents have not issued any order of re-fixation of recovery and therefore, the question of issuance of notice does not arise at all. As far as the rectification of error in fixation of pay is https://www.mhc.tn.gov.in/judis 3/14 W.P.No.30873 of 2014 concerned, the Authorities competent are empowered to correct the same at any point of time. Recovery can be imposed if there is a misrepresentation or in the event of an undertaking by the employee concerned. If there is no misrepresentation, or an undertaking by the employee, then the Courts have to consider as to whether the recovery would result in extreme hardship, and in such circumstances, recovery alone is to be quashed. However, the authorities competent are empowered to correct the mistakes in the fixation of pay or revision of scale of pay.
5. No employee is entitled for excess payment of salary or otherwise, which would result in unjust gain. An employee is entitled to receive the salary as applicable to the post in which he is working and in accordance with the Pay Rules in force. In the event of excess payment of salary, the Authorities competent are empowered to recover the same by following the procedures as contemplated. In this context, the Supreme Court also held that “unjust enrichment at no circumstances be allowed”. Excess payment is to be always recovered, however certain exceptions are culled out by the Supreme Court by stating that “in the event of recovery from Class 4 employees, the same would result in https://www.mhc.tn.gov.in/judis 4/14 W.P.No.30873 of 2014 hardship and therefore, the recovery should be avoided in respect of the Class 4 employees”. Again, the Courts have held that, if the recovery causes hardship to the pensioners and family pensioners, then also the recovery is to be avoided. In all other cases, any excess payment made to the employees had to be recovered, as such employees are not entitled for the particular fixation or payment which was subsequently found as excess.
6. In this context, two aspects have to be considered, at the time of revision of scale of pay:-
(i) If an employee gives an undertaking that he will repay the amount, in the event of any excess payment or
(ii) the revision of pay was granted pursuant to the misrepresentation or otherwise, then the authorities are competent to recover the excess payment by issuing Show Cause Notice and by offering an opportunity of hearing to the employee concerned to defend his case.
7. In the present case, the learned Additional Government Pleader furnished the copy of the undertaking given by the writ petitioner at the https://www.mhc.tn.gov.in/judis 5/14 W.P.No.30873 of 2014 time of revision of scale of pay done in the case of the writ petitioner under the Tamil Nadu Revised Scales of Pay Rules, 2009. The said undertaking reveals that “as hereby also undertake that any excess payment that may be found to have been made as a result of incorrect fixation of pay or any excess payment deducted in the light of discrepancy notices, subsequently will be refunded by me to the Government either by adjustment against future payments due to me or otherwise without insisting for any prior notice “
8. Thus, at the time of re-fixation of pay, the petitioner has given a clear undertaking that he will repay the excess payment if any deducted in the light of discrepancy notice subsequently. In the present case, the audit party raised an objection with reference to the fixation done in favour of the writ petitioner and the audit objections were just placed before the authorities. The petitioner has filed the writ petition questioning the audit objections and admittedly, no order of re-fixation or recovery has been issued and therefore, there is no cause for the petitioner to file the present Writ Petition. Mere audit objection cannot be a ground to file a Writ Petition. If at all the petitioner was able to secure a copy of the audit objection, he should have filed an objection on the audit https://www.mhc.tn.gov.in/judis 6/14 W.P.No.30873 of 2014 objections, instead of filing a Writ Petition by allowing the competent authority to take a final decision and pass appropriate orders in the manner known to law. Contrarily, the petitioner has chosen to file the Writ Petition merely challenging the audit objection and thus, the Writ Petition is not entertainable as no order has been passed revising the scale of pay of the Writ Petitioner and the consequential recovery.
9. This Court has considered the principles regarding the recovery of excess amount from the Government employees with reference to the Judgment of the Hon'ble Supreme Court of India in W.P.(MD)Nos.19010 to 19018 of 2014, dated 20.06.2019 and the relevant paragraphs are extracted hereunder:-
14.The Hon'ble Supreme Court of India in the case of Chandi Prasad Uniyal and others v.
State of Uttarakhand and others reported in 2012 (8) SCC 417, the settled legal principles in the matter of recovery as follows;
“His lordship Justice K.S.P.Radhakrishnan.J, while speaking for the Bench considered the earlier judgment of the Supreme Court including the judgment of the Three Judge Bench of the Supreme Court in Saiyad Abdul Kadip reported in 2009 (3) SCC475 as well as Shyam Babu Verma's case reported in (1994) 2 SCC 521 held as follows:
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14.We are concerned with the excess payment of public money which is often described as “tax payers money” which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee.
Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case and in Col. B.J. Akkara (retd.) case, the excess payment made due to wrong/irregular pay fixation can always be recovered.
16. Appellants in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order the excess payment made be https://www.mhc.tn.gov.in/judis 8/14 W.P.No.30873 of 2014 recovered from the appellant’s salary in twelve equal monthly installments starting from October 2012.”
15.Subsequently, the Three Judge Bench of the Hon'ble Supreme Court of India in the case of State of Panjab and others etc Vs. Rafiq Masih (White Washer) reported in (2014) 8 SCC 883 again reiterated the principles laid down in the case of Chandi Prasad Uniyal and others v. State of Uttarakhand cited supra, para -8 of the judgment of the Three Judges Bench reiterates the legal principles laid down in Chandi Prasad Uniyal case as follows:-
“8.We are of the considered view, after going through various judgments cited at the bar, that this court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the recipients of the money in getting the excess pay, the amount paid due to irregular/wrong fixation of pay be recovered.”
16.During the year 2015, once again the Two Judges Bench of the Hon'ble Supreme Court in the case of State of Punjab v. Rafiq Masih reported in (2015) 4 Supreme Court Cases 334 in paragraph No.18 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, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
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(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.”
17.As far as 2015 case of the Supreme Court is concerned, the principles laid down in Chandi Prasad Uniyal case as well as in Rafiq Masih case by the Three Judges Bench of the Supreme Court was reiterated and only exceptions were drawn by stating that in the event of no misrepresentation on the part of the employees belonging to Group III and IV. The excess amount if at all any paid need not be recovered. However, the fixation can be corrected. Thus, 2015 judgment clarifies that only on certain circumstances in respect of certain class of employees and also the retired employees, the excess amount paid cannot be recovered and not in all other cases. Thus, the legal principles settled by the Chandi Prasad Uniyal case and Rafiq case decided by the Three Judges Bench of Supreme Court holds the field of recover and that is to be followed as a binding precedent.
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18.Even recently, the Two Judges Bench of the Hon'ble Supreme Court in the case of High Court of Punjab and Haryana v. Jagdev Singh reported in AIR 2016 SC 3523 reiterated the principles followed by the earlier judgments of the Apex Court and accepted the exception cared out in 2015 Rafiq Misih case. Thus, the legal position in the matter of recovery is now settled and accordingly the Government Servants cannot be allowed to enjoy any unjust enrichment of tax payers money.
19.There is a growing trend in the State of Tamil Nadu that the Sub-ordinate officials at the District level and in Panchayat level such Government Orders are some time misinterpret to the advantage of the employees and arrears of amount are drawn from the Government Treasuries. In other words, there are large scale collusions amongst to the District level authorities with the employees for the purpose of drawing these pay commission arrears and thereby causing financial loss to the State exchequer for the purpose of gaining unjust enrichment in favour of the employees. These aspects sought to be clearly considered by the Higher Authorities of the Government and all appropriate actions are to be initiated against in all such cases.”
10. In the present case, the petitioner has given a clear undertaking while granting revision of scale of pay under the Tamil Nadu Revised Scales of Pay Rules, 2009. The petitioner was holding the post of Agriculture Officer, which is classified as Group 2 category post and therefore, he cannot seek the exemption which would be applicable to Group 4 employees. When the petitioner was working in Group 2 https://www.mhc.tn.gov.in/judis 11/14 W.P.No.30873 of 2014 category and given an undertaking that he will repay the excess payment if any traced out subsequent to the revision of scale of pay, he is liable to repay the excess amount. However, no order has been passed in the present case and the petitioner had approached even before the passing final orders by the competent authorities revising the scale of pay based on the audit objection. Thus, the writ petition itself to be considered as premature.
11. However, the writ petition is pending for about 7 years. Therefore, in the interest of justice, this court is inclined to pass the following orders :
(i) Writ petitioner is at liberty to submit his explanation based on the audit objection which is available with the petitioner, within a period of three weeks from the date of receipt of a copy of this order.
(ii) On receipt of the explanation, if any, submitted by the writ petitioner within the said period, the respondents shall consider the issues after verifying the correctness of the scale of pay and pass appropriate orders on merits and in accordance with law within a period of 12 weeks thereafter.
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12. With the above directions, this Writ Petition stands disposed of. No costs. Consequently, connected Miscellaneous Petitions are also closed 02.08.2022 sha To
1. The Principal Secretary Finance (Pay Cell) Department, Government of Tamil Nadu, Fort St.George, Chennai-600 009.
2. The Director, Department of Agriculture, Chepauk, Chennai-600 005.
3. The Director, Department of Agriculture Marketing and Agri Business, Guindy, Chennai-600 032 https://www.mhc.tn.gov.in/judis 13/14 W.P.No.30873 of 2014 S.M.SUBRAMANIAM, J.
sha W.P.No.30873 of 2014 & M.P.Nos. 1 & 2 of 2014 02.08.2022 https://www.mhc.tn.gov.in/judis 14/14