Recovery of excess salary paid on retrospective regularisation of a Manager-in-charge was challenged by a retired employee. Holding the petitioner fell within the impermissible-recovery categories in Rafiq Masih, the Court quashed the recovery order.
Impugned recovery order dated 16.06.2015 quashed; connected miscellaneous petition closed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
W.P.No.26108 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 13.06.2024
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
W.P.No.26108 of 2015 &
M.P.No. 1 of 2015
D.Kumar
...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.4740/Pers.Estt.1/2004 dated 16.06.2015 and quash the same.
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For Petitioner : Mr. K.S.Viswanathan Senior Counsel for Ms. T.Hemalatha For Respondent1 : Mr. V.Jeevagiridharan Additional Government Pleader 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 16.06.2015 bearing Ref. No.4740/Pers.Estt.1/2004. The impugned order of the 2nd respondent
seeks to recover the amounts that have been paid in excess to the petitioner based on audit objections. It would be necessary to allude to the facts for appreciating the grievances of the petitioner herein.
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TCMPF.
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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 1988 to 1995 i.e., for the period when the petitioner was posted as a Manager-in-charge (Production) till the date his services has been regularied by the 2nd respondent.
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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. Against the said order, the petitioner had filed a revision before the 1st respondent. Since orders were not passed by the revisional authority, the petitioner has once again knocked the doors of this Court seeking an early disposal of the revision which is also granted by this Court by an order dated 09.02.2011, wherein this Court had directed the 1st respondent to dispose of the revision within a period of 4 weeks from the date of receipt of a copy of the order.
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and getting no response to these representation which spans a period form 28.05.2012 to 01.12.2014, the petitioner once again filed W.P.No.13730 of 2015, challenging the original order dated 04.07.2000. The said Writ Petition has been admitted and kept pending.
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behalf of the learned counsel for the petitioner would submit that the petitioner was posted as a Manager-in-charge (Production). 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 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.
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higher pay admissible to the higher post. The petitioner and the similarly placed persons have been similarly 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.
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were issued on 12.05.1995 and the regularisation order was also issued on the very same day.
Vs. Jagdev Singh .
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the Deputy Manager (Engineering), which is the lower level post.
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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 , 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).
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(ii) Recovery from retired employees, or employees who
are due to retire within one year, of the order of recovery.
(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.”
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Index : Yes/No Internet : Yes/No kan
To
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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.
P.T. ASHA, J,
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kan
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1 issue framed by the court
Whether recovery of salary arrears paid pursuant to retrospective regularisation can be made from a retired employee based on an audit objection and his earlier undertaking.
Colour shows how this judgement treated each authority
State of Punjab and others Vs. Rafiq Masih (White Washer)Relied on¶20
2015 (4) SCC 334 · Who else cites this
1 provisions across 1 enactments
D. Kumar
The Commissioner of Milk Production & Dairy Development
The Managing Director, Tamilnadu Co-operative Milk Producer's Federation Limited
P.T. Asha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
