E.Jayasingh Christopher v. The Commissioner Of Municipal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ W.P.NO. 18595 OF 2010 AND M.P.NO.1 OF 2010 E.Jayasingh Christopher ... Petitioner /Vs/
1. The Commissioner of Municipal Administration, Chepauk, Chennai - 600 005.
2. The Assistant Director of Local Fund Audit Kuralagam, 4th Floor, Chennai - 600 0108.
3. The Commissioner, Rasipuram Municipality, Rasipuram, Namakkal District.
... Respondents Prayer :
Writ petition filed under Article 226 of the Constitution of India praying Writ of Certiorari to call for the entire records relating to the proceedings of the second respondent in Na.Ka.No.5319/ NaOosa(2)/2010 dated 27.04.2010 and the consequential order of the third respondent in Na.Ka.No.3965/08/C1 dated 15.06.2010.
For Petitioner : Mr.S.Mani For Respondents :Mr.Balathandayutham Special Government Pleader
ORDER
This Writ petition is filed against the impugned order passed by the second respondent in Na.Ka.No.5319/NaOosa(2)/2010 seeking to recover a sum of Rs.72,272/-(Rupees Seventy Two Thousand Two Hundred and Seventy Two only) representing the
Retirement Benefits, Dearness Allowance and Medical Allowance for the period from 01.09.2004 to 31.03.2006.
2. This is the second round of litigation against recovery proceedings initiated by the respondent against the petitioner. The petitioner submits that prior to this impugned proceedings, the respondents had sought to recover a sum of Rs.1,13,979/- (Rupees One Lakh Thirteen Thousand Nine Hundred and Seventy Nine only) representing salary and other Retirement Benefits. The recovery was sought to be made on the premise that during the period from 01.09.2004 to 31.03.2006, though the petitioner had worked as Malaria Mazdoor, by virtue of the orders of this Court in W.P.No.24096 of 2004 dated 03.11.2006, the petitioner was promoted as Sanitary Inspector on 17.08.2004. The above recovery was sought to be made on the premise that if the petitioner had continued in the post of Sanitary Inspector, he would have reached superannuation on 31.08.
2004, whereas, by virtue of holding the post of Malaria Mazdoor, he had retired only on 31.08.2006 and had drawn salary for the period from 01.09.2004 to 31.03.2006. This is in view of the fact that while the age of superannuation in the case of Sanitary Inspector was 58 years, in the case of Malaria Mazdoor, it was 60 years.
3. Aggrieved by the action of the respondents to recover a sum of Rs.1,13,979/-(Rupees One Lakh Thirteen Thousand Nine Hundred and Seventy Nine only), earlier the petitioner filed a writ petition in W.P.No.16225 of 2008 and this Court was pleased to hold that the recovery was bad and allowed the same vide its order dated 06.01.2010. The relevant portion of the above said order is extracted below:
"The above writ petition has been filed to quash the proceedings of the first respondent in Roc.No.16069/2007/J1 dated 08.05.2007 and the consequential order passed by the third respondent in his proceedings Na.Ka.No.7801/863/C1 dated 01.05.2007 and the order passed by the second respondent in his proceedings Ni.Mu.No.36105/MPV2/07 dated 22.11.2007 and direct the respondents to pay the recovered amount of Rs.1,13,979/- to the petitioner.
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6.As rightly pointed out by the learned counsel appearing for the petitioner, there is no misrepresentation or fraud committed by the petitioner. The order of reversion came to be passed based on the understanding of the position which was then in existence relating to the petitioner's service. Therefore, in my view, the respondents are not justified in ordering recovery of the amount for the period from 31.08.2004 to 31.03.2006. Admittedly,
the petitioner had discharged his duties in the post of Malaria Mazdoor during the said period. Hence, the impugned order cannot be sustained."
4. It may be relevant to note that the above order of the learned Single Judge has attained finality, thus any attempt to recover any sum which consitutes part of Rs.1,13,979/- (Rupees One Lakh Thirteen Thousand Nine Hundred and Seventy Nine only)is clearly impermissible. However, the respondent has issued the impugned order seeking recovery a sum of Rs. 72,272/- (Rupees Seventy Two Thousand Two Hundred and Seventy Two only) representing the Retirement Benefits, Dearness Allowance and Medical Allowance. The impugned order over looks the fact that the said sum component of Rs. 72,272/- (Rupees Seventy Two Thousand Two Hundred and Seventy Two only) also formed part of amount of Rs.1,13,979/-(Rupees One Lakh Thirteen Thousand Nine Hundred and Seventy Nine only), which was sought to be recovered earlier and which was held to be unsustainable by this Court in W.P.16225 of 2008.
5. In view of the above, the recovery of Rs.72,272 /-(Rupees Seventy Two Thousand Two Hundred and Seventy Two only) is clearly bad and illegal. The impugned order is set aside. In the event of recovery of the above sums of Rs.72,272/-(Rupees Seventy Two Thousand Two Hundred and Seventy Two only) having been made, the same shall be refunded by the respondent to the petitioner within a period of eight weeks from the date of receipt of the copy of this order.
6. Accordingly, the said writ petition is allowed. Consequently, connected miscellaneous petition, if any, is closed.
Sd/- Assistant Registrar(CS VIII) //True Copy// Sub Assistant Registrar gba/mka To
1. The Commissioner of Municipal Administration, Chepauk, Chennai - 600 005.
2. The Assistant Director of Local Fund Audit Kuralagam, 4th Floor, Chennai - 600 0108.
3. The Commissioner, Rasipuram Municipality, Rasipuram, Namakkal District.
+1cc to the Government Pleader, S.R.No.64050 W.P.No.18595 of 2010 VBM(CO) PM/16/12/2021