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Madras High CourtWP/11532/2011disposed of

R. Ponmudi v. The Secretary To Government

2021-10-29Honourable Dr Justice Anita Sumanth14 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 29.10.2021

CORAM:

THE HON'BLE Dr. JUSTICE ANITA SUMANTH WP.Nos.11532, 11533, 11534 & 16016 of 2011 and M.P.Nos.2, 2 and 2 of 2011 and M.P.Nos.1, 1 and 1 of 2012 WP.No.11532 of 2011 1.R.Ponmudi 2.T.Kumaresan 3.V.Kaviarasu 4.M.Gajendran 5.R.Ananda Padmanaban 6.V.Ravi 7.A.Boopathy 8.K.Karunanithi 9.J.Rajmohan 10.P.Rajamani 11.G.Uthayakumar 12.K.Pandi 13.A.Sankaran 14.V.Shanmuga Sundaram 15.S.Gowri Shankar 16.V.Baskaran 17.S.Kannan 18.C.V.Elangovan 19.J.Rajapandiyan 20.G.Natarajan 21.S.Mannankatti 22.R.Rajendran 23.N.Govindasamy 24.K.Swarnalatha 25.K.Senthil 26.V.Gunasekaran 27.S.Muruganandam 28.A.Ganapathi 29.K.Selvam 30.S.Duraisami 31.A.Krishnamoorthy 32.K.Sekharraj 33.S.Sridharan 34.V.Rajan 35.D.Jayabalan 36.D.Balasubramanian 37.C.Selvaraj 38.T.S.Edisan Santhosam 39.M.S.Sivagamasundari 40.C.Selvam 41.P.Thangam 42.R.Kumar

43.A.Anandaraj 44.M.Durgaisamy 45.V.Govindaraj 46.A.Muruganantham 47.D.Vijayasankar 48.T.Karthikeyan 49.R.Ragavan 50.N.Premkumar 51.D.Arulalan 52.K.Sundaravaradan 53.T.G.Rajendran 54.E.Govindaraj 55.P.Vishnu 56.K.Dasarathan 57.N.Jayamoorthy 58.S.Sivakumar 59.J.Kannan 60.R.Eswaran 61.J.Balakumar 62.K.Krishnan 63.K.Ponnupandi 64.S.Natesan 65.M.M.Subramanian 66.S.Ramakrishnan 67.C.Rajasundar 68.N.Parthiban 69.S.Sivasankaran 70.P.Mani 71.K.Selvakumar 72.M.Yuvaraj 73.R.Raghuraman 74.M.Ravi 75.R.Natarajan 76.K.S.Kannan 77.M.Sumathi Samundeeswari 78.D.Vaithiyanathan 79.T.Kaliyaperumal 80.S.Radhakrishnan 81.N.Venkitasamy 82.M.S.Vijayakumaran 83.G.Sampathkumar 84.A.Ramesh 85.S.Ethiraj 86.J.Jayapriya 87.M.Rajasekar 88.K.Elangovan 89.A.Thiyagarajan 90.D.Ranganathan 91.R.Sekar 92.A.Sugumar 93.R.Srinivasan 94.S.Chandrasekaran 95.K.Namasivayam 96.S.Velivikavalaperumal

97.R.Sarangan 98.G.Kumarasamy 99.S.Venkatesan ... Petitioners vs.

1. The Secretary to Government, Transport Department, St. Fort George, Chennai-9.

2. The Managing Director, Tamil Nadu State Transport Corpn., [Villupuram] Ltd., Vazhutha Reddy Post, Villupuram & District.

... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying to issue Writ of Certiorarified Mandamus, calling for the Letter No.4170/D/2010-3 dated 23.09.2010 and Letter No.18912/D/2010-2 dated 12.04.2011 on the file of the 1st Respondent and Memo No.014/00014/E1/TNSTC (VPM)/2010 & Memo.No.7668/PB 4/TNSTC (VPM)/ KPM/2010 dated 15.04.2011 passed by the 2nd Respondent and to quash the same as illegal and consequently direct the Respondents to pay House Rent Allowance drawn by the Petitioners all along from 01.10.1984 as per G.O.[Ms.]No.10 Transport Department dated 02.01.1987.

WP.No.11533 of 2011 1.S.K.Balasubramanian 2.M.Jeevanandam 3.M.Perumalsamy 4.N.Doraisamy 5.A.Rajendiran 6.R.M.Pounraja 7.V.Lawrance 8.B.Subramanian 9.R.Venkatachalam 10.S.Ravilakshmanan 11.V.Muralikrishnan 12.E.Devarajan 13.G,Thirumoorthi 14.K.Kanakasabapathi 15.R.Bakthavatsalam 16.R.Sayeekrishnan 17.R.Veeramani 18.R.Devaraj 19.K.Senathipathy 20.S.Mayakrishnan 21.S.K.Selvanayagam

22.V.Krishnasamy 23.K.R.Muthusamy 24.T.Pinto Stephen 25.M.Sundaramurthy 26.K.Mohanasundarashanmugam 27.G.Rajendran 28.H.Sureshkumar 29.K.Gandhi 30.J.Gilbert Rajan 31.K.Alagappan 32.R.Mylsamy 33.P.Duraisamy 34.K.Chandrasekaramanoharan 35.S.Abdul Basheer 36.K.S.Mahendrakumar 37.R.Thangavelu 38.G.Rajasekaran 39.N.Jeyachandran 40.K.Ramasamy 41.K.Balasubramanian 42.V.Baladhandapani 43.G.Janarthanan 44.R.Rathakrishnan 45.C.Kanagarajan 46.A.Thevathas 47.D.Thangavelu 48.K.Selvaraju 49.V.Govindasamy 50.M.Kanagaraju 51.K.Chenniappan 52.M.AL.Karuppien 53.G.Palanisamy 54.M.Udhayakumar 55.S.Venkatachalapathy 56.K.S.Shanmugavelayutham 57.B.Ganesan 58.Vivekanandham 59.M.Nattudurai 60.K.Gunasekaran 61.V.Chellappan 62.T.Veerukathan 63.A.Muthukrishnan 64.K.T.Govindarajan 65.R.Prabhu 66.S.Sundararajan 67.K.M.Subramaniam 68.S.P.Rajamanickam 69.M.Eganathan 70.V.Ravikumar 71.K.P.Chandrasekaran 72.R.Muthukrishnan 73.O.S.Kuppusamy 74.T.Vairavasundaram 75.R.Mahendran

76.T.C.Raman 77.G.Ganesan 78.R.Mohan 79.M.A.Murugesan 80.K.Palaniyandi 81.P.Shanmugam 82.R.Premkumar ... Petitioners vs.

1. The Principal Secretary to Government, Transport Department, St. Fort George, Chennai-9.

2. The Managing Director, Tamil Nadu State Transport Corpn., [Coimbatore] Ltd., 37 Mettupalayam Road, Coimbatore - 641 043.

... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying to issue Writ of Certiorarified Mandamus, calling for the Letter No.4170/D/2010-3 dated 23.09.2010 and Letter No.18912/D/2010-2 dated 12.04.2011 on the file of the 1st Respondent and Letter No.19367/P1/PBS/TNSTC (CBE)/2011 passed by the 2nd Respondent and to quash the same as illegal and consequently direct the Respondents to pay House Rent Allowance drawn by the Petitioners all along from 01.10.1984 as per G.O.[Ms.]No.10 Transport Department dated 02.01.1987.

WP.No.11534 of 2011 1.Somasundaram R 2.Panneerselvam V 3.Nataraajhan V 4.Chellamuthu K 5.Raju R 6.Balasubramanian S 7.Gunasekaran R 8.Nagarajan P 9.Vasudevan S 10.Rathnam K 11.Kumar D 12.Rangaraj C.R 13.Arumugham N 14.Venkatachalam B 15.Gopalsamy A 16.Laxman D 17.Jeevarathinam S 18.Chinnusamy S 19.Jeeva S.K

20.Pugalendhi K 21.Madheswaran K 22.Mohanraja A 23.Murugan K 24.Chandramohan P 25.Sivamani G.K 26.Loganathan M.S 27.Asokan R 28.Balasubramanian R 29.Ramasamy S 30.Arul Jothi A 31.Baskaran K 32.Kangeyan K 33.Veerappan S 34.Madhavan K 35.Gowrisankar V.K 36.Jaganathan P 37.Kangesan K 38.Rajendran N 39.Murugesan R 40.Alfred Thinakaran D 41.Panneerselvam M 42.Baskaran K 43.Bose M 44.Sudhindar D 45.Sampoornam P 46.Tamizhselvan B 47.Murugesan P 48.Ravindran P 49.Arumugham A 50.Senguttuvan P 51.Ravichandran R 52.Ramesh N 53.Selvakumar P 54.Murugan M 55.Ragupathi V 56.Sekar R 57.Govindasamy M 58.Gunasekaran T 59.Rajendran D 60.Mahendran R 61.Sundram M.K 62.Jayakumar A 63.Mohankumar T 64.Aravindan M 65.Jayabalu V.K 66.Arulmozhi G ... Petitioners vs.

1. The Secretary to Government, Transport Department, St. Fort George, Chennai-9.

2. The Managing Director, Tamil Nadu State Transport Corpn., [Salem] Ltd., 12, Ramakrishna Road, Salem District.

... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying to issue Writ of Certiorarified Mandamus, calling for the Letter No.4170/D/2010-3 dated 23.09.2010 and Letter No.18912/D/2010-2 dated 12.04.2011 on the file of the 1st Respondent and Lr. Memo No.E1/999/TNSTC (SLM)/2011 dated 20.04.2011 passed by the 2nd Respondent and to quash the same as illegal and consequently direct the Respondents to pay House Rent Allowance drawn by the Petitioners all along from 01.10.1984 as per G.O.[Ms.]No.10 Transport Department dated 02.01.1987.

WP.No.16016 of 2011 1.K.Palanivel 2.M.Subramanian 3.B.Kesavan 4.J.Sasikumar 5.N.Periyasamy 6.M.Kumaravel 7.G.Tamilarasan 8.S.Ravichandran 9.R.Ramesh 10.N.Parthiban 11.K.Sadasivam 12.M.Thirulogachandar 13.P.Ramakrishnan 14.S.Murugesan 15.V.Manoharan 16.V.Subramani 17.M.Kandasamy 18.D.Raja 19.K.Pandiyan 20.M.Abdul Muheem 21.D.Venkatesan 22.P.Palanivel 23.P.Asokan 24.S.Thamaraikannan 25.A.Karunakaran 26.P.D.Baskar 27.A.Thiagarajan 28.M.Loganathan 29.C.Marappan 30.K.Duraisamy 31.R.P.Ravichandhran 32.R.Thangaraju 33.B.Ganesh Kumar

34.N.Elango 35.K.Chandrasekar 36.S.Raja 37.N.Kalaivanan 38.K.Kathirvel 39.P.Mahendran 40.R.Shanmugam 41.P.Jayaprakash 42.M.Shajahan 43.A.R.Balraj 44.N.Hariprakash 45.V.Shanthi 46.S.Jayakumar 47.R.Murali 48.M.Ramesh Babu 49.M.Suresh Babu 50.M.Manjuladevi 51.N.Balasubramanian 52.S.M.Khadarmohideen 53.P.Shanmuganathsing, 54.N.Sumathy 55.K.Aruna 56.M.Shanmugavadivu 57.P.Senthil 58.P.Mohan 59.R.Chitra 60.S.Selvakumar 61.V.Sakthivelu 62.M.Pandiyan 63.A.Chezhiyan 64.S.Kulanthasami 65.S.Vivekanandan 66.M.Mahendiran 67.D.Murugesan 68.P.Kanthimathi 69.P.Soundappan 70.P.Subramanian 71.M.Raja 72.A.Prabhakaran ... Petitioners vs.

The Managing Director, Tamil Nadu State Transport Corporation, (Salem) Ltd., 12, Ramakrishna Road, Salem-7, Salem District.

... Respondent PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying to issue Writ of Mandamus, to direct the Respondent to grant the revised rates of hourse rent allowance to all the Petitioners as applicable to Grade I

(b) cities and accordingly repay the amount already recovered and continue to pay the same in future.

For Petitioners : Mr.L.Chandrakumar (in WP.Nos.11532 to 11534 of 2011) No Appearance (in WP.No.16016 of 2011) For Respondents : Mr.C.Selvaraj, Government Advocate (for R1 in WP.Nos.11532 to 11534 of 2011) Mr.T.Chandrasekaran (for R2 in WP.Nos.11532 to 11534 of 2011) Mr.S.Magesh Kumar for Mr.D.Raghu (for sole respondent in WP.16016 of 2011) COMMON ORDER Heard Mr.L.Chandrakumar, learned counsel for the petitioners in W.P.Nos.11532 to 11534 of 2011, Mr.C.Selvaraj, learned Government Advocate for R1 in WP.Nos.11532 to 11534 of 2011, Mr.T.Chandrasekaran, learned counsel for contesting respondent, i.e., R2/Transport Corporation in WP.Nos.11532 to 11534 of 2011 and Mr.S.Magesh Kumar, learned counsel appearing for Mr.D.Raghu, learned counsel for respondent in WP.No.16016 of 2011.

2.On 27.10.2021, I had passed the following order: 'Mr.L.Chandrakumar, learned counsel for the petitioner in W.P.Nos.11532 to 11534 of 2011 seeks a days' time to provide the details of how many petitioners in the aforesaid three Writ Petitions continue in service and how may have since retired from service.

2. As far as W.P.No.16016 of 2011 is concerned, since the erstwhile counsel on record had reported no instructions, the name of the petitioners as well as the counsel, if any, who has entered appearance was directed to be printed in the cause list. The cause list today reflects the name of the petitioner as P1K.Palanivel, Assistant Engineer, Salem Muffisil Bus Stand, Tamil Nadu State Transport Corporation (Salem) Ltd., Salem and 71 others. However, there is no appearance by or on behalf of the petitioners today.

3. Since the facts in W.P.No.16016 of 2011 are identical to W.P.Nos.11532 to 11534 of 2011,

Mr.Magesh, learned counsel appearing for Mr.Raghu, learned counsel on record for the Transport Corporation in this Writ Petition is directed to provide the details of how many of the petitioners in this Writ Petition are in service as on date and how many have since retired.

4. For this limited purpose, list on 29.10.2021.'

3.Today memos have been filed in respect of the writ petitioners in WP.Nos.11532, 11533 and 11534 of 2011 to the following effect:- 'WP.No.11532 of 2011 MEMO - REGARDING PETITIONERS WHO ARE IN SERVICE It is submitted that the above writ petition has been filed seeking quashing of the respondent's proceedings in regard to alleged excess payment of House Rent Allowance (HRA) having been disbursed w.e.f. 01.10.1984. This Memo is filed clarifying or rather bringing forth to the notice of this Hon'ble Court that most of the petitioners have already retired on reaching the age of superannuation, thereby their claim is liable to be considered on the basis of the law settled in White Washers' case reported in (2015) 4 SCC 334 - State of Punjab Vs. Rafiq Mashi.

In view of the above the petitioners who have retired from service are entitled to the claim as per the directives and Guidelines issued there under. However in so far as the following petitioners whose Serial Number in the array of cause title is mentioned herein below are still working and continue to discharge duties:- They are Sl.Nos.1, 17, 24, 25, 26, 28, 29, 30, 31, 33, 37, 39, 42, 43, 44, 48, 58, 59, 60, 61, 63, 64, 69, 70, 71, 72, 73, 74, 75, 76, 77, 82, 85, 86, 87, 88, 89 & 93 (38 petitioners). Thus, recording the above suitable appropriate orders may be passed by this Hon'ble Court.

Hence in the interest of justice, it is prayed that this Hon'ble Court may be pleased to record the above memo and to pass such other further or other order as it deem fit and proper and thus render justice.'

WP.No.11533 of 2011 MEMO - REGARDING PETITIONERS WHO ARE IN SERVICE It is submitted that the above writ petition has been filed seeking quashing of the respondent's proceedings in regard to alleged excess payment of House Rent Allowance (HRA) having been disbursed w.e.f. 01.10.1984. This Memo is filed clarifying or rather bringing forth to the notice of this Hon'ble Court that most of the petitioners have already retired on reaching the age of superannuation, thereby their claim is liable to be considered on the basis of the law settled in White Washers' case reported in (2015) 4 SCC 334 - State of Punjab Vs. Rafiq Mashi. In view of the above the petitioners who have retired from service are entitled to the claim as per the directives and Guidelines issued there under.

However in so far as the following petitioners whose Serial Number in the array of cause title is mentioned herein below are still working and continue to discharge duties:- They are Sl.Nos.10, 16, 27, 36, 60, 61, 63, 67, 74, 78 (10 petitioners). Thus, recording the above suitable appropriate orders may be passed by this Hon'ble Court.

Hence in the interest of justice, it is prayed that this Hon'ble Court may be pleased to record the above memo and to pass such other further or other order as it deem fit and proper and thus render justice.'

WP.No.11534 of 2011 MEMO - REGARDING PETITIONERS WHO ARE IN SERVICE It is submitted that the above writ petition has been filed seeking quashing of the respondent's proceedings in regard to alleged excess payment of House Rent Allowance (HRA) having been disbursed w.e.f. 01.10.1984. This Memo is filed clarifying or rather bringing forth to the notice of this Hon'ble Court that most of the petitioners have already retired on reaching the age of superannuation, thereby their claim is liable to be considered on the basis of the law settled in White Washers' case reported in (2015) 4 SCC 334 - State of Punjab Vs. Rafiq Mashi. In view of the above the petitioners who have retired from service are entitled to the claim as

per the directives and Guidelines issued there under. However in so far as the following petitioners whose Serial Number in the array of cause title is mentioned herein below are still working and continue to discharge duties:- They are Sl.Nos.38, 46, 51 & 63 (4 petitioners). Thus, recording the above suitable appropriate orders may be passed by this Hon'ble Court.

Hence in the interest of justice, it is prayed that this Hon'ble Court may be pleased to record the above memo and to pass such other further or other order as it deem fit and proper and thus render justice.'

4. The short point argued is that several of the petitioners before this Court, have retired as on date. However, despite there having been no order of interim stay granted by this Court, the Transport Corporation has not effected recovery as per the impugned orders. Thus, as on date, the petitioners who have retired should not be faced with recovery.

5. The judgment of the Hon'ble Supreme Court in the case of State of Punjab and Others Vs. Rafiq Masih (White Washer) etc. ((2015) 4 SCC 334), supports the above argument in full. At paragraph 12, the Hon'ble Supreme Court has laid down following guidelines for effecting recovery:

'.............

12. 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 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'

6.In view of the categoric conclusion of the Hon'ble Supreme Court to the effect that recovery should not be proximate to, or post the date of superannuation of an employee and since, in this case, several of the petitioners are stated to have retired as on date, without going into the merits of the matter, the following order is passed: i) No recovery shall be made in the case of those petitioners who have retired as on date.

ii) In case of petitioners who continue in service as on date, seeing as the impugned orders have been admittedly passed without compliance with the principles of the natural justice, the same stands set aside and the petitioners shall be heard and orders passed afresh within a period of four (4) weeks from date of receipt of a copy of this order. 7.Mr.Magesh, learned counsel appearing for Mr.D.Raghu would submit that recovery has been effected in the case of all the employees. In such case, there is nothing further to be done, except if the recovery was proximate to retirement or contrary to the specific observations/guidelines framed by the Hon'ble Supreme Court in the White Washers' case (supra). In such cases, it is open to those petitioners to seek refund of the amount from R2/Corporation by way of representation. 8.These writ petitions are disposed. No costs. Connected miscellaneous petitions are closed.

Sd/- Assistant Registrar (CS-VI) //True Copy// Sub Assistant Registrar vs/kbs To

1. The Secretary to Government, Transport Department, St. Fort George, Chennai-9.

2. The Managing Director, Tamil Nadu State Transport Corpn.,[Villupuram] Ltd., Vazhutha Reddy Post, Villupuram & District.

3. The Principal Secretary to Government, Transport Department, St. Fort George, Chennai-9.

4. The Managing Director, Tamil Nadu State Transport Corpn.,[Coimbatore] Ltd., 37 Mettupalayam Road, Coimbatore - 641 043.

5. The Managing Director, Tamil Nadu State Transport Corpn., [Salem] Ltd., 12, Ramakrishna Road, Salem District.

+1cc to Mr.L.Chandrakumar, Advocate SR. No.56339 +1cc to Mr.T.Chandrasekaran, Advocate SR. No.56441 +1cc to Mr.D.Raghu, Advocate SR. No.56357 +1cc to the Government Pleader SR. No.56708 WP.Nos.11532, 11533, 11534 & 16016 of 2011 and M.P.Nos.2, 2 and 2 of 2011 and M.P.Nos.1, 1 and 1 of 2012 MG (CO) PR (01/12/2021)