Madras High Court
Tamil Nadu Civil Supplies Corporation vs R.Ganesha Rao on 24 January, 2019
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.01.2019
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
W.A.No.207 of 2019
and
CMP No.2173 of 2019
1. Tamil Nadu Civil Supplies Corporation
represented by its Managing Director,
No.12, Thambusamy Road,
Kilpauk,
Chennai - 600 010.
2. The Senior Regional Manager,
Tamil Nadu Civil Supplies Corporation,
Thanjavur Region,
Thanjavur. ... Appellants
Vs.
R.Ganesha Rao ... Respondent
Writ Appeal filed under Clause 15 of the Letters Patent against the order
dated 21.03.2018 made in W.P.No.10915 of 2011.
For Appellants : Mr.K.Karthikeyan,
for Mr.C.Munusamy
Standing counsel
For Respondent : Mr.D.Bharatha Chakravarthi
for M/s.T.Sai Krishnan
http://www.judis.nic.in
2
JUDGEMENT
(Order of the Court was delivered by SUBRAMONIUM PRASAD, J) The Managing Director, Tamil Nadu Civil Supplies Corporation, has filed the instant writ appeal, challenging the order dated 21.03.2018, passed by a learned Single Judge of this Court in W.P.No.10915 of 2011. The learned Single Judge by the impugned order, quashed the order bearing ref.Na.Ka.No.A6/22736/07 dated 21.08.2009, permitting recovery of a sum of Rs.1,14,915/-, from the writ petitioner / respondent, who retired on 31.01.2008 as Special Grade Boiler Operator.
2. The writ petitioner/respondent was working as a Special Grade Boiler Operator under Tamil Nadu Civil Supplies Corporation. On attaining the age of superannuation, he retired from service on 31.01.2008. The writ petitioner/respondent filed W.P.No.10915 of 2011, stating that after his retirement, a sum of Rs.3,50,000/- is payable to him by way of Gratuity. On enquiry, he was told that a sum of Rs.1,14,915/-, has to be paid by him and only upon such payment, he will be disbursed with the retiral benefits. Having no other alternative, the writ petitioner/respondent gave a consent letter stating that the appellants can withhold whatever amount and pay the balance. The 2nd respondent/2nd appellant therefore passed the following order.
PROCEEDINGS OF THE SENIOR REGIONAL MANAGER http://www.judis.nic.in TNCSC - THANJAVUR REGION 3 PRESENT: THIRU.T.PICHAIYA, B.A., Proc.R.C.No.A6/22736/2007 Dated: 21.08.2009 Sub: Establishment - TNCSC- Thanjavur Region - MRM, Ammanpet, Thiru.R.Ganesh Rao, Spl. Grade Boiler Operator - Superannuation as on 31.01.2008 Retirement order issued already - Clear Retirement order - issued - regarding.
Read: 1.S.R.M., Thanjavur Retirement order, Rc.No.A6/22736/07, dated 31.01.2008.
2. Thiru.R.Ganesa Rao, Spl. Gr. Boiler Operator's consent letter dated 30.07.2009
3. And other connected records.
ORDER:-
In the reference 1st cited, Thiru. R.Ganesa Rao, Spl.Gr. Boiler Operator, MRM, Ammanpet is permitted to retire from service on Superannuation on the Afternoon of 31.01.2008 without prejudice the recovery in respect of outturn shortages and other recoveries.
During the tenure of service of the individual, the following shortages were noticed as detailed below:-
I Thanjavur Region
a Excess payment of Salary Rs.98,000
b Excess Salary Paid Rs.1,846
c Marriage advance Interest Rs.1,208
II Trichy Region
d Bonus Advance Rs.1,500
e Short outturn Rs.4621
III Nagai Region
f Outturn shortage Rs.7,710
Total Rs.1,14,915
Thiru.R.Ganesa Rao, Spl.Gr. Boiler Operator, MRM, Ammanpet has given the consent letter for effecting recovery from the terminal benefits as per the reference 2nd read alone.
Therefore Thiru.R.Ganesa Rao, Spl.Gr.Boiler Operator is deemed to have been permitted to retire from service on the Afternoon of http://www.judis.nic.in 31.01.2008 by way of clear retirement order issued now.4
As per the clear retirement order issued to Thiru.R.Ganesa Rao, Spl.Gr.Boiler Operator, MRM, Ammanpet action to be taken by the officials for getting the terminal benefits to the individual early.
3. Challenging the above mentioned order, the writ petitioner / respondent filed the instant writ petition. A learned Single Judge allowed the writ petition stating that the order dated 21.08.2009 is completely contrary to the judgment of the Hon'ble Supreme Court in State of Punjab and others Vs. Rafiq Masih and Others, reported in (2015) 4 SCC 334. The learned Single Judge has relied on paragraph No.18 of the said judgment. At the risk of repetition, paragraph No.18 of the judgment in State of Punjab & Ors. Vs. Rafiq Masih, reported in 2015 (4) SCC 334, relied on by the writ Court is reproduced.
"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, summarise 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 http://www.judis.nic.in 5 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 be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
Challenging the order of the learned Single Judge, instant writ appeal is filed.
4. Heard the learned counsel for the parties and perused the materials available on record.
5. The learned counsel for the appellants would strenuously contend that the judgment of the Hon'ble Supreme Court in Rafiq's case [cited supra] should not be applied, because the writ petitioner / respondent himself has consented for recovery of the amount and once he has consented the government was completely at liberty to withhold the amount. He submitted that Rafiq's case [cited supra] will not be applicable, where the retired employee consented to the recovery of the amount, which has been paid in excess to him.
6. We are afraid that the said argument can hold water. There is nothing http://www.judis.nic.in in the said judgment, which would state that if the employee consents, then 6 the employer is at liberty to withhold such amount. The law laid down by the Hon'ble Supreme Court in Rafiq's case [cited supra] categorically states that there cannot be any recovery from a retired employee. No amount of consent by a retired employee would permit the employer to withhold any amount. The law laid down by the Hon'ble Supreme Court is binding on all.
7. As per Article 141 of the Constitution of India the law declared by the Hon'ble Supreme Court is binding on all Courts within the territory of India. The said Judgment of the Rafiq's case [cited supra], is binding, which categorically states that there can be no recovery from a person, who has retired.
8. During the course of the arguments, G.O.Ms.No.286, Finance (Pension) Department dated 28.08.2018 was brought to our notice. A perusal of the said Government Order would show that the Government has implemented the abovesaid decision and issued a Government Order. The relevant portion of the said Government Order, reads as under.
"ORDER The Hon'ble Supreme Court in the case of State of Punjab & Others etc vs. Rafiq Mashi (White Washer) etc in CA No.11527 of 2014 (Arising out of SLP (C) No.11684 of 2012) wherein Hon'ble Court on 18.12.2014 decided a bunch of cases in which monetary benefits were given to employees in excess of their http://www.judis.nic.in entitlement due to unintentional mistakes committed by the 7 concerned competent authorities, in determining the emoluments payable to them, and the employees were not guilty of furnishing any incorrect information / misrepresentation / fraud, which had led the concerned authorities to commit the mistake of making the higher payment to the employees. The employees were as innocent as their employers in the wrongful determination of their inflated emoluments.
....
7. The Government also directs that the procedure on recovery of overpaid amounts shall be as follows:-
(1) Wherever any overpayments are noticed, the action for fixing the responsibility on erring officials be initiated by the Secretary to Government, Administrative Department in Secretariat / Head of Departments / Heads of Offices concerned immediately.
(2) Endeavour should be made to recover the overpaid amount from the recipient of the said amount.
(3) In case the reasons of overpayment are attributable to the employee / pensioner / family pensioner or the establishment concerned, legal action other follow up actions be initiated against such member or establishment for recovery of the overpaid amount.
(4) The recovery of overpayments from the officials will be made only when responsibility of such overpayments are fixed by the Secretary to Government, Administrative Departments in Secretariat / Head of Departments / Heads of Offices on the concerned officials. In these cases also, efforts should be made to recover the amounts from the recipients to the extent possible and permissible under law."
http://www.judis.nic.in 8
9. Once the Government have passed the above mentioned Government Order, it should not file appeals against orders in writ petitions which have been passed on the basis of the judgment in State of Punjab & Others etc vs. Rafiq Mashi (White Washer) etc (cited supra). The present appeal, has been filed on 10.08.2018. In any case, the Government must give instructions not to press even the appeals filed prior to issuance of G.O.Ms.No.286, Finance (Pension) Department dated 28.08.2018.
10. In view of the above, writ appeal is dismissed. No Costs. Consequently, the connected Civil Miscellaneous Petition is closed.
[S.M.K., J.] [S.P., J.]
24.01.2019
Index : Yes/No.
Internet : Yes
Speaking/Non-speaking order
ars
http://www.judis.nic.in
9
S. MANIKUMAR, J.
AND
SUBRAMONIUM PRASAD, J.
ars
W.A.No.207 of 2019
and CMP No.2173 of 2019
http://www.judis.nic.in 24.01.2019