K.Selvaraj, v. The Secretary,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 31.10.2019 C O R A M THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD W.P.No.8067 of 2013 K.Selvaraj ... Petitioner Vs.
1. The Secretary Labour Welfare Employment and Training Dept., Fort St., George, Chennai - 600 009.
2. The Director Employment and Training Guindy, Chennai - 600 032.
3. The Principle Accountant General (A & E) Tamil Nadu, Chennai.
4. The Deputy Director/Principal Govt, Related Instruction Center Govt. Industries Training Center Campus, Salem - 7, Salem District.
... Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the impugned orders dated 17.08.2012 in Sa.Mu.A.No.1471/A2/2012, Na.Ka.No.6595/A2/2012 dated 17.09.2012 and Na.Ka.No.6595/A2/2012-2 dated 26.10.2012 passed by the 4th respondent and quash the same, consequently direct the respondents to pay and recovered amount to the tune of Rs.95,800/- with interest to the petitioner.
For petitioner : Mr.M.Elango For R1, R2 and R4: Ms.K.Bhuvaneswari Additional Government Pleader For R3 : Mr.S.Balaji
ORDER
The present writ petition is filed for a Writ of Certiorarified Mandamus, calling for the records relating to the impugned orders, dated 17.08.2012 in Sa.Mu.A.No.1471/A2/2012, Na.Ka.No.6595/A2/2012, dated 17.09.2012 and Na.Ka.No.6595/A2/2012-2, dated 26.10.2012, passed by the 4th respondent and to quash the same and consequently, to direct the respondents, to pay and recovered amount to the tune of Rs.95,800/- with interest to the petitioner.
2. The petitioner was appointed as Office Assistant in the 4th respondent office. He was promoted as Junior Assistant. He was further promoted as an Assistant. The petitioner was awarded selection grade Assistant with effect from 02.09.2009. The petitioner reached the age of superannuation on 30.06.2012. By an order dated 17.08.2012 that after the retirement of the petitioner the personal pay granted to the petitioner has been cancelled with effect from 01.08.1982. Another order has been passed on 17.09.2012, seeking recovery of Rs.80,860/-, from the petitioner.
3. These orders which have been challenged in the instant writ petition. The facts are not in dispute.
4. Heard the learned counsel for the parties.
5. The issue which arises in the instant writ petition is covered by the Judgment of the Hon'ble Supreme Court in State of Punjab and others vs. Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334. Paragraph No.18 of the said judgment, reads as under:- "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:
(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 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. The respondent do not dispute that the said judgment is squarely applicable to the case on hand.
7.Writ petition is allowed. No Costs.
s/d- Assistant Registrar(CS VI) True Copy Sub-Assistant Registrar dm To
1. The Secretary Labour Welfare Employment and Training Dept., Fort St., George, Chennai - 600 009.
2. The Director Employment and Training Guindy, Chennai - 600 032.
3. The Principle Accountant General (A & E) Tamil Nadu, Chennai.
4. The Deputy Director/Principal Govt, Related Instruction Center Govt. Industries Training Center Campus, Salem - 7, Salem District.
+1 CC to Mr.M.Elango, Advocate sr 90174 +1 CC to Mr.S.Balaji, Advocate sr 90107.
+1 CC to Govt.Pleader sr 90709.
W.P.No.8067 of 2013 SPD(CO) SP(05/12/2019)