Dr.K.Durairaj v. The Commissioner Of Milk
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 13.06.2024
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA Dr.K.Durairaj
...Petitioner
Vs.
1.The Commissioner of Milk Production & Dairy Development, Madhavaram Milk Colony, Chennai - 600 051.
2.The Managing Director, Tamilnadu Co-operative Milk Producer's Federation Limited, Madhavaram Milk Colony, Chennai - 600 051.
...Respondents
Prayer: Writ Petition is filed under Article 226 to issue a Writ of Certiorari, to call for the records of the 2nd respondent bearing Ref.No.29300/Pers.Estt.1/2004 dated 04.07.2009 and quash the same. 1/14
For Petitioner :
Mr. K.S.Viswanathan Senior Counsel for M/s. T.Hemalatha For Respondent1 :
Mr. Alagu Goutham Government Advocate For Respondent 2 :
Mr. R.Balaramesh.
O R D E R
The petitioner seeks to quash the order passed by the 2nd respondent in his proceedings dated 04.07.2009 bearing Ref.No.29300/Pers.Estt.1/2004 ordering recovery of the excess amount paid to the petitioner. It would be necessary to allude to the facts for appreciating the grievances of the petitioner herein.
2. The petitioner was appointed initially as a Veterinary Officer in the Tamil Nadu Diary Development Corporation Limited, herein after referred to as TNDDC. On 01.02.1981, the TNDDC was converted as the Tamil Nadu Cooperative Milk Producers' Federation, 2/14
which would herein after be referred to as TCMPF.
3. The petitioner was promoted as a Deputy Manager on 01.04.1983, in which capacity he had worked for about 6 years. Thereafter, on 15.09.1989 he was posted as a Manager-in-charge (Veterinary) against a regular vacancy. Further, he continued to receive the scale pay of the Deputy Manager (Veterinary). Thereafter, the post of Manager (Veterinary) was re-designated as Deputy General Manager.
4. The 2nd respondent vide his proceedings dated 12.05.1995 had regularised the service of the petitioner retrospectively in the cadre of Manager drawing pay scale of Rs.3700 - 125 - 4700 - 150 - 5000 and the arrears of salary with effect from 15.09.1989 was also granted to the petitioner. However, while granting the same, an undertaking was also taken from the petitioner and the similarly placed persons that the arrears of salary paid would be subject to recovery in the 3/14
event of audit objections for the same.
5. Nearly 15 years after the arrears of salary were paid to the petitioner on the basis of a special audit report, the 2nd respondent had passed an order dated 06.04.2004 directing recovery of the arrears of salary paid for the period from 1989 to 1995 i.e., for the period when the petitioner was posted as a Manager-in-charge (Veterinary) till the date his services has been regularied by the 2nd respondent.
6. The petitioner had immediately challenged the recovery proceedings by filing W.P.No.19480 of 2004 and thereafter by order dated 29.08.2008 this Court directed that the recovery be treated as show cause notice and final order be passed by the respondents after giving opportunity to the petitioner. Meanwhile on 31.07.2008, the petitioner had retired from service, however the 2nd respondent withheld his terminal benefits towards arrears / excess salary. 4/14
7. In compliance of the above order dated 29.08.2008, the petitioner had submitted his reply to the 2nd respondent. However, by an order dated 04.07.2009, the 2nd respondent confirmed the order of recovery from the petitioner. The petitioner has submitted a detailed representation on 31.05.2011 to the said order dated 04.07.2009 requesting to release his terminal benefits at the earliest. However, there is no response from the respondents.
8. Therefore, challenging the order dated 04.07.2009, the petitioner has filed the instant Writ Petition.
9. Mr. K.S.Viswanathan, learned senior counsel appearing on behalf of the learned counsel for the petitioner would submit that the petitioner was posted as a Manager-in-charge (Veterinary). He had fully qualified to hold the said post which is the next promotion post as per the rules of the respondent federation. The Rules prescribed 5/14
that the persons who are working in the respondent federation for 5 years in a lower cadre becomes eligible for promotion to the next higher level post. Therefore, the petitioner had been put in charge only against the regular vacancy.
10. The learned senior counsel would also rely upon an earlier proceedings of the Finance Department dated 05.08.1985, wherein, clarification had been issued to the effect that where a higher post is filled up by lower level officer, the lower level officer should be paid higher pay admissible to the higher post. The petitioner and the similarly placed persons have been posted into the next higher level and therefore there is no ambiguity in the payment of the arrears and regularisation. The respondents have not considered the objections made by the petitioner before passing the impugned order.
11. The learned senior counsel would also rely upon the Judgement of the Hon'ble Supreme Court reported in 2015 (4) SCC 6/14
334 - State of Punjab and others Vs. Rafiq Masih (White Washer), with particular reference to Paragraph No.18. He would also submit that they could also not be de-promoted back to the earlier post since that post had also been filled up.
12. The learned senior counsel would also submit that the regularisation of the petitioner and the similarly placed persons has not been a hasty decision but a decision which had commenced with the Personnel Committee meeting held on 08.05.1995, who after analysing the various aspects had recommended for regularisation. This minutes were issued on 12.05.1995 and the regularisation order was also issued on the very same day.
13. Ultimately, the board which is the final authority in its meeting dated 22.06.1995 had ratified the action taken by the Personnel Committee and minutes to this effect had been issued on 7/14
10.07.1995 after which the regularisation order were issued to the parties concerned. Therefore, the audit objection is erroneous.
14. The respondent has filed a counter statement which primarily proceeds on the ground that the petitioner has himself given an undertaking that in the event of the audit objections, the arrears paid could be recovered. They would also seek to distinguish the Judgement cited on by the petitioner by relying upon the Judgement reported in 2016 (14) SCC 267 - High Court of Punjab and Haryana and others Vs. Jagdev Singh.
15. Heard the learned counsels and perused the records.
16. It is not the case of the respondents that the petitioner has been put in-charge of the post which is not his next higher post. It is also not in dispute that till the regulatisation, when the petitioner served as a Manager-in-charge he had been paid the scale of pay 8/14
applicable to the Deputy Manager (Veterinary), which is the lower level post.
17. The records would further show that by the order dated 12.05.1995, the petitioner had not been promoted but his service in the post of Manager-in-charge had been regularised with effect from 15.09.1989 and the scale of pay in the cadre of Manager was also directed to be paid with retrospective effect. The audit objections however ignored the orders passed by the Personnel Committee in its meeting dated 08.05.1995 which has been ratified and approved by the board. Therefore, no anamoly is found in the appointment of the petitioner.
18. Further, the petitioner had superannuated nearly 7 years ago, at the time of filing of the Writ Petition. Therefore, the Judgement of the Hon'ble Supreme Court reported in 2015 (4) SCC 334 - State of Punjab and others Vs. Rafiq Masih (White Washer) and others, 9/14
would clearly apply to this case. The Hon'ble Supreme Court in paragraph no.18 has stated as follows:
"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. 10/14
(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."
19. Therefore, as per clause 18 (2) & 18 (4) supra, the recovery 11/14
initiated against the petitioner is impermissible and consequently the Writ Petition is allowed and the impugned order is quashed. No costs.
13.06.2024 Index : Yes/No Internet : Yes/No kan To 1.The Commissioner of Milk Production & Dairy Development, Madhavaram Milk Colony, Chennai - 600 051.
2.The Managing Director, Tamilnadu Co-operative Milk Producer's Federation Limited, Madhavaram Milk Colony, 12/14
Chennai - 600 051.
P.T. ASHA, J, kan 13/14
13.06.2024 14/14