P.Thenmozhi v. The Government Of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 05.07.2017

CORAM

THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR W.P.No.21264 of 2012 and MP.No.2 of 2012 & MP.No.1 of 2013 P.Thenmozhi .. Petitioner Vs.

1. The Government of Tamilnadu Represented by the Secretary to the Government Adhi Dravidar & Tribal Welfare Department, Fort St.George, Chennai - 9.

2. The Director of Adhi Dravidar and Tribal Welfare Chepauk, Chennai - 5

3. The District Adhi Dravidar & Tribal Welfare Officer Cuddalore District, Cuddalore.

4. The Special Tahsildar, Adhi Dravidar Welfare, Cuddalore, Cuddalore District.

5. The Sub Treasury Officer, O/o Sub Treasury, Cuddalore, Cuddalore District.

.. Respondents Prayer : Writ petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus to call for the records of the 3rd and 4th respondent in relation to the proceedings issued in No.W.7/73438/2000 dated 12.04.2001 issued by the third

respondent and in Na.Ka.No.Aa/148/2011 dated 12.09.2011 passed by the fourth respondent and quash the same and issue a consequential direction to the respondents to release the amount of Rs.3,33,320/- recovered from the amount of gratuity and Rs.1,03,000/- recovered from petitioner with interest @ 18% per annum, and restore the pay of the petitioner at Rs.1,700/- in the scale of pay of Rs.1640-2900 in the selection grade scale of pay of Primary School Headmaster with effect from 01.06.1988 with consequential benefits and revise the pension and pay the arrears of pension to the petitioner. For Petitioner : Mr.R.Saseetharan For Respondents : Mr.S.Diwakar Special Government Pleader

ORDER

This writ petition has been filed for an issuance of Writ of Certiorarified Mandamus to call for the records of the 3rd and 4th respondent in relation to the proceedings issued in No.W.7/73438/2000 dated 12.04.2001 issued by the third respondent and in Na.Ka.No.Aa/148/2011 dated 12.09.2011 passed by the fourth respondent and quash the same and issue a consequential direction to the respondents to release the amount of Rs.3,33,320/- recovered from the amount of gratuity, and Rs.1,03,000/- recovered from petitioner with interest @ 18% per annum, and restore the pay of the petitioner at Rs.1700/- in the scale of pay of Rs.1640-2900 in the

selection grade scale of pay of Primary School Headmaster with effect from 01.06.1988 with consequential benefits and revise the pension and pay the arrears of pension to the petitioner.

2. The case of the petitioner is that she was appointed in the Department of Adhi Dravidar and Tribal Welfare as Secondary Grade Teacher in the Government Adi Dravidar Welfare School, A.Kutchipalayam, Cuddalore District on 08.06.1972. It is stated by the petitioner that in the Department of Adhi Dravidar and Tribal Welfare, the post of Secondary Grade Teacher, Primary School Headmaster and Middle School Headmaster were treated as one and same, and are interchangeable, on the ground that the said posts carried a same scale of pay. In the light of the G.O passed by the Government, the post of Middle School Headmaster and Primary School Headmaster alone became a promotional post awarding higher scale of pay. By virtue of the order in G.O.Ms.No.666 dated 27.6.89, the Government has awarded higher scale of pay to the post of Primary School Headmaster, and the said post became a promotional post with effect from 1.06.1988.

3. It is contended by the petitioner that since the post of Primary School Headmaster was declared as promotional post with effect from 1.06.1988, in order to fill up the vacancies in the said post, seniority in the post of Secondary Grade Teachers were also be considered, as per the provisions contemplated under Rule 36(a)(ii) of Tamil Nadu State and Subordinate Service Rules. However, this was not followed by the Department of Adhi Dravidar and Tribal Welfare, and the persons holding the post of Primary School Headmaster were allowed to function as Primary School Headmaster continuously irrespective of their seniority. It is also contended by the petitioner that prior to the said G.O.

, no seniority was followed for posting the Secondary Grade Teacher as Primary School Headmaster in the Department of Adhi Dravidar Tribal Welfare, and the persons in the post of Secondary Grade Teachers were promoted as Primary School Headmasters only to meet out the administrative needs and exigencies that arises. Even when the said G.O., came into effect, the Department of Adhi Dravidar Tribal Welfare never followed the seniority for promoting the Secondary Grade Teachers to Primary School Headmaster.

4. The Government of Tamil Nadu passed an order in G.O.Ms.No.1381 dated 05.10.1990, fixing the pay of selection grade and special grade pay to the post of Primary School Headmasters. It also provides the said benefit is entitled to the Secondary Grade Teachers who are holding the post of Primary School Headmaster as on 1.6.1988, and they are entitled to count their service rendered as Secondary Grade Teacher as well as the Primary School Headmasters in fixing the pay. However, the said benefit was given only to the persons holding the post of Primary School Headmasters as on 1.6.1988 and not to those who are promoted as Primary School Headmasters, subsequent to 1.6.1988.

5. According to the petitioner, she was transferred to the post of Primary School Headmaster at Periyakattupalayam on 10.01.1989, thereafter, she was posted as Secondary Grade Teacher in the year 1990 and then she was promoted to Primary School Headmaster on 05.7.1995 and posted at A.Kuchiapalayam, Cuddalore District. Her promotion as Primary School Headmaster was not based on seniority, but only due to the administrative reasons. The grievance expressed by the petitioner, on 01.6.1988, her pay in the post of Secondary

Grade Teacher was fixed at Rs.1,500/- in the pay scale of Rs.14002900, whereas the juniors who are in the same cadre of Secondary Grade Teacher, holding the said post as on 1.6.1988 were allowed to the selection grade pay scale of Rs.1640-2900, by virtue of the G.O.Ms.No.1381, and also their services both as Secondary Grade Teachers as well as Primary School Headmaster were accounted for fixing their selection grade scale pay. Aggrieved which, the petitioner has made several representations to the Government as well as to the Department of Adhi Dravidar and Tribal Welfare. The Director of the Adhi Dravidar and Tribal Welfare Department, the second respondent herein has issued proceedings dated 12.7.

1989 in which it is implied that according to the Adi Dravidar Subordinate Service Special Rules, the posts of Wardens, Matrons and Teachers are interchangeable one and in the seniority lists, seniors are acting as Assistant and juniors are acting as Headmasters of Middle School, Primary School, and so also the Wardens/Matrons, Tamil Pandits are holding the posts of Middle School Headmasters.

scale of pay announced in the V Pay Commission to the categories of Headmasters of Middle School and Headmaster of Primary Schools and also directed to take immediate steps to finalise the proper/correct district-wise seniority list of B.Ts/ Secondary Grade Teachers. In the said proceeding, it also directed that pay fixation should be done correctly and no senior should be affected with pay anomaly.

6. In the light of the said G.O., the third respondent vide his proceedings dated 30.6.1997, has fixed the pay of the petitioner in the post of Primary School Headmaster with effect from 01.06.1988 at Rs.1700/-, by stepping up the pay of the petitioner to the level of her junior P.Kaliamurthy, Elementary School Headmaster and in consequent to the above scale pay fixation, her pay was fixed at Rs.2,300/- as on 01.7.1996, and the petitioner was allowed to draw the same scale of pay for more than five years. To her shock and surprise, the petitioner received a show cause notice dated 02.4.2001, issued by the third respondent calling for an explanation as to why the pay that has already been fixed, should not be re-fixed and the excess pay shall not be recovered from the petitioner on the ground that the pay was wrongly fixed, and the petitioner was required to submit her explanation within fifteen days time. Before the expiry of the said

show cause notice, order of recovery dated 12.4.2001 was passed by the third respondent. But, no recovery has been effected from her salary immediately. It appears that only after a lapse of five years, it recovered a sum of Rs.78,000/- from the petitioner's salary at the rate of Rs.2,000/- for the period starting from 01.04.2006 to 30.06.2009. Thereafter, on 19.11.2004, the petitioner had paid a sum of Rs.25,000/-, and thus, had recovered a sum of Rs.1,03.000/- from the petitioner. The petitioner also consented for the recovery on the ground that his pension papers will not be finalised. The petitioner got retired from his service on 30.06.2009, on attaining the age of superannuation, and prior to her retirement, the said amount was recovered from the petitioner.

7. It is contended by the petitioner that after her retirement, the fourth respondent has issued the impugned order dated 12.09.2011 by refixing the pay of the petitioner with effect from 01.6.1988 and passed an order of recovery of excess payment from the Death-cumRetirement Gratuity. In the said impugned proceedings, the details showing the recovery of excess payment is enclosed and the same is shown hereunder for reference :

ABSTRACT A :

Excess drawn for the period 01.6.88 to 31.12.95 (Page 1 & 2 ) vide G.O.Ms.No.666 Finance (Pay Commission) Department dated 26.06.1989 and G.O.Ms.No.304 Finance (Pay Commission Department dated 20.3.90 for the period (01.6.88 to 31.12.95) Rs. 45,675.00 01.06.96 to 31.08.98 (Page 3) vide G.O.Ms.No.162 Finance (Pay Cell) Department dated 13.04.98 (01.06.96 to 31.08.98) Rs. 30,976.00 01.09.98 to 31.05.2008 (Page 4) vide G.O.Ms.No.427 Finance (Pay Cell) Department dated 28.08.1998 (01.09.98 to 30.6.2008) Rs. 3,61,736.00 Surrender Leave Salary 01.06.88 to 31.05.2008 Rs. 11,195.00 Total :

Rs. 4,49,582.00 Adjustment :

As per Pay Revision adjustment for the period 01.06.08 to 30.06.09 (to be drawn shall adjusted) (Page 5) Rs. 13,262.00 Balance Amount :

Rs. 4,36,320.00 B :

Recovery Details a) Amount of pay recovery Rs.2,000/- was already made in her salary bill for the period 01.04.2006 to 30.06.2009 (39x2000) Rs. 78,000.00 b) Challan remitttance at SBI on 19.11.2004 Rs. 25,000.00 c) Deduct recovery (a+b) Rs. 1,03,000.00 Balance to be recovered from Tmt.P.Thenmozhi Retired Primary School Headmistress (A-B) Rs. 3,33,320.00

8. It is submitted that followed by the impugned order dated 12.09.2011, a sum of Rs.4,55,549/- was sanctioned to the petitioner as her Death-cum-Gratuity. It is also contended by the learned counsel for the petitioner that the petitioner's pension benefits were not disbursed to her for more than three years on account of uncertainty in fixing her pay. It is submitted that apart from the above recovery of excess payment, the fourth respondent has added another sum of

Rs.8,979/- alleging excess expenditure that was met out by the petitioner during her service as Matron in Government Technical Training Institute, and the same need to be recovered from her. In total, there was a total deduction of Rs.3,42,299/-[Rs.3,33,320.00 + Rs.8,979.00], out of the total gratuity amount of Rs.4,55,549/- and it directed to pass a bill for only Rs.1,13,250/- to be payable by Sub Treasury, Cuddalore. Accordingly, the said sum of Rs.3,42,299/- was recovered from the petitioner's gratuity and she was paid the terminal benefit of Rs.1,13,250/- after two years of her retirement. Aggrieved which, the petitioner is before this Court, praying to quash the proceedings of the third and fourth respondent dated 12.04.2001 and 12.09.

2011 respectively and also prayed for an appropriate orders to direct the respondents to release the said amounts, and also to restore his pay at Rs.1,700/- in the scale of pay of Rs.1640-2900 in the selection grade scale of pay of Primary School Headmaster with effect from 01.06.1988 with consequential benefits and to revise the pension and pay him the arrears of pension accordingly.

9. In reply to the submissions of the learned counsel for the petitioner, the learned Additional Government Pleader appearing for the respondents would submit that the Government had issued orders

guiding for fixation of pay for the Elementary School Headmasters. Accordingly, the fourth respondent had issued orders on 12.09.2011 overriding all previous orders. In the present impugned order, which contains the abstract, it clearly shows the details of the petitioner's revised, refixed pay fixation along with the details of excess amount arrived out of pay fixation, amount that was adjusted as per revision pay adjustment, and also the remaining amount to be recovered from the petitioner. Therefore, the respondent has recovered the said amount from the petitioner's gratuity account and the balance terminal amount has to be paid. In the said circumstances, the writ petition is liable to be dismissed and hence prayed for dismissal.

10. The learned counsel appearing for the petitioner has relied upon the decision 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], and it is relevant to extract paragraph No.18 of the said judgment, which reads as follows : "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 as 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."

11. In the aforementioned judgment, clause (ii) of paragraph No.18, would apply to the present case on hand, since the petitioner has been retired from service and the fourth respondent has passed an order of recovery after his retirement from service, that too, on the basis of the revised Government Order issued in G.O.Ms.No.38 dated 05.3.2001. Secondly, in pursuance to the said impugned order, the fourth respondent has recovered a sum of Rs.3,33,320/- from the gratuity amount of the petitioner, which according to the petitioner, is violation of principle under Article 21 of the Constitution, and that the

fourth respondent has no jurisdiction to recover the same from the gratuity amount after his retirement and in support of this point of argument, he relied on paragraph No.29 of the judgment of this Court in P.Subramanian Vs. Government of Tamil Nadu, Rep. by the Secretary to the Government. Adi Dravidar & Tribal Welfare Department, Chennai - 600 009 & Others reported in [(2010) 3 MLJ 934], which reads as under :

29. Moreover, the death-cum-retirement gratuity is an accrued right provided under the statute and that cannot be taken away without following the basic principles of natural justice. This view is fortified by the decision of the Supreme Court in Jaswant Singh Gill v. Bharat Coking Coal Limited and Others, (2007) 1SCC (L&S) 584, wherein it was held as under :

"The Rules framed by the Coal India Limited are not statutory rules. They have been made by the holding company of respondent 1. The Payment of Gratuity Act was enacted with a view to provide for a scheme for payment of gratuity to the employees engaged inter alia in mines. The Act provides for a close-knit scheme providing for payment of gratuity. It is a complete code containing detailed provisions of a scheme for a gratuity. It not only creates a right to payment gratuity. It is a complete code containing detailed provisions covering the essential provisions of a scheme for a gratuity. It not only creates a right to payment of gratuity but also lays down the principles for quantification thereof as also the conditions on which he may denied therefrom. A statutory right accrued thus, cannot be impaired by reason of a rule which does not have the force of a statute. The provisions of the Act, therefore, must prevail over the Rules." In such view of the matter, looking from any angle, I do not see any justification on the part of the respondents 4 and 5 in passing such

order of recovery and effecting recovery of Rs.3,39,929/- from the pensionary benefits of the petitioner, especially death-cum-retirement gratuity and commuted value pension. Therefore, the writ petition is allowed and impugned orders are set aside with a direction to the respondents to return the amount of Rs.3,39,929/- recovered from the petitioner with interest at the rate of 9% from the date of recovery till the date of repayment and the respondents till the date of repayment and the respondents are directed to restore the pay of the petitioner as it was originally fixed at Rs.1,760/- as per G.O.Ms.No.1381, School Education Department, dated 5.10.1990 and subsequently, re-fix the pay and pay all consequential monetary benefits and fix the pension of the petitioner accordingly. Such orders shall be passed by the respondents within a period of twelve weeks from the date of receipt of a copy of this order. No costs. Consequently, M.P.No.2 is closed."

12. In view of the above facts looking from any angle and in the light of the aforesaid judgments, the fourth respondent has no legal right to recover the amount from the gratuity account of the petitioner and therefore, the action of the fourth respondent is quashed.

13. Considering the facts of the case and in the light of the aforesaid judgments, this Court is of the considered view that : (i) the impugned order dated 12.09.2011 passed by the fourth respondent is quashed.

(ii) the fourth respondent is directed to refund the recovered amount of Rs.3,33,230/- to the petitioner within a period of twelve weeks from the date of receipt of a copy of this order. (iii) it is open to the respondents to proceed in accordance with law in continuation of the earlier order dated 12.04.2001, if it is permissible under law, after affording opportunity to the petitioner.

14. With the above directions, this writ petition is disposed of. No costs. Consequently, connected miscellaneous petitions are closed. 05.07.2017 adl/ds Internet : Yes / No Speaking Order/Non-speaking Order

D.KRISHNAKUMAR, J.

adl/ds To:

1. The Secretary to Government Government of Tamilnadu Adhi Dravidar & Tribal Welfare Department, Fort St.George, Chennai - 9.

2. The Director of Adhi Dravidar and Tribal Welfare Chepauk, Chennai - 5

3. The District Adhi Dravidar & Tribal Welfare Officer Cuddalore District, Cuddalore.

4. The Special Tahsildar, Adhi Dravidar Welfare, Cuddalore, Cuddalore District.

5. The Sub Treasury Officer, O/o Sub Treasury, Cuddalore, Cuddalore District.

W.P.No.21264 of 2012 05.07.2017