V.Ponnuchamy v. The Principal Chief Engineer
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23.01.2018
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM W.P.(MD) No.3679 of 2011 and W.M.P.(MD) Nos.2 and 3 of 2011 V.Ponnuchamy Assistant(SG), O/o.The Executive Engineer, P.W.D.Buildings-Construction and Maintenance Division, P.W.D.Campus, Tirunelveli.
....Petitioner .vs.
1. The Principal Chief Engineer, (WRO)-cum-Chief Engineer(GEN), Public Works Department, Chepauk,Chennai-5.
2. The Special Chief Engineer, Public Works Department Buildings, Construction and Maintenance Circle, Tirunelveli.
3. The Executive Engineer, P.W.D.Buildings Construction and Maintenance Division, P.W.D.Campus, Tirunelveli.
... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari, calling for the records relating to the impugned order passed by the first respondent in his proceedings Lr.No.S3(3)/52442/2010, dated 28.01.2011, and the consequential order passed by the second respondent in his proceedings in Pa.2/1032/2011, dated 22.3.2011 and the consequential revision of pay and recovery order passed by the third respondent in his proceedings in Ee.1/1337/2011-2, dated 24.3.2011and to quash the same as illegal.
For Petitioner : Mr.Mohammed Imran for M/s.Ajmal Associates For Respondents : Mr.M.Muthu 1 to 3 Addl. Government Pleader
O R D E R
The order of recovery, dated 22.03.2011 in respect of revision of pay and recovery is under challenge in this Writ Petition. 2.The learned counsel for the Writ Petitioner made a submission that the Petitioner was appointed as Junior Assistant in the Public Works Department on compassionate grounds. However, while granting revision of pay, some errors took place and based on the audit objection, recovery was also imposed. The learned counsel for the Writ Petitioner states that the revision and recovery was imposed without any show-cause notice to the Petitioner. Thus, the order is in violation of the principles of natural justice. Further, the revision of pay has been effected after a lapse of 11 years from the date of initiation of fixation of scale of pay and on that ground also, the impugned order is liable to be scrapped.
3.The learned Additional Government Pleader appearing on behalf of the respondents opposed the said contentions by stating that the competent authorities are empowered to rectify the errors in respect of fixing of pay and there is no irregularity in imposing recovery of excess pay granted to the Writ Petitioner. 4.This Court is of the opinion that the competent authorities are certainly empowered to rectify the mistakes, if any, occurred at the time of granting of revision of pay to the employees. However, rectification alone is permitted and recovery of excess pay cannot be imposed after a lapse of many years. The salary even if any paid excessively, the same cannot be recovered in view of the fact that there was no misrepresentation or otherwise on the part of the Writ Petitioner.
Even there was no undertaking obtained at the time of granting revision of pay from the Writ Petitioner. Thus the respondents are at liberty to correct the scale of pay and grant the pay applicable to the Writ Petitioner in accordance with the Government Orders and Pay Rules in force. However, in respect of recovery, the same cannot be given effect to in view of the fact that the Writ Petitioner is working as Junior Assistant, which is a Grade-III post. The Hon'ble Supreme Court of India settled the principles in respect of recovery in the case of State of Punjab v. Rafiq Masih reported in (2015) 4 Supreme Court Cases 334 in paragraph No.18 of the judgment is relevant and the same is extracted hereunder:- "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.
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 iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
5.Clause(1) of the paragraph 18 states that recovery from the Grade-II and III employees are impermissible in view of the settled principles in the decision cited supra. The order impugned in this Writ Petition passed by the first respondent in Lr.No.S3 (3)/52442/2010, dated 28.01.2011 is quashed in respect of recovery and the respondents are at liberty to correct the scale of pay and fix the scale of pay as applicable to the Petitioner as per the Government Orders in force. While effecting such revision of pay, the respondents are bound to issue notice to the Petitioner and after getting his explanations/objections, consider the same and pass appropriate orders in respect of revision of pay.
6.Accordingly, the Writ Petition stands allowed. However, there shall be no order as to costs. Consequently, connected Miscellaneous Petitions are closed.
Sd/- Assistant Registrar /True Copy/ Sub Assistant Registrar To
1. The Principal Chief Engineer, (WRO)-cum-Chief Engineer(GEN), Public Works Department, Chepauk, Chennai-5.
2. The Special Chief Engineer, Public Works Department Buildings, Construction and Maintenance Circle, Tirunelveli.
3. The Executive Engineer, P.W.D.Buildings Construction and Maintenance Division, P.W.D.Campus, Tirunelveli.
+1cc toM/s.Ajmal Associates, Sr.No.43799 +1cc to Spl.Government Pleader Sr.No.43979 VSN VB/JC/SAR2/15.02.2018/4P/6C W.P.(MD) No.3679 of 2011 and W.M.P.(MD) Nos.2 and 23.01.2018