IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.03.2008 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.3686 of 1999 C.Perumal ... Petitioner vs. 1. The Secretary to Government, State of Tamil Nadu, Municipal Administration and Water supply Department, Fort St. George, Chennai-9. 2. The Secretary to Government, State of Tamil Nadu, Finance Department, Fort St. George, Chennai-9. 3. The Director of Municipal Administration, Chepauk, Chennai-5. 4. The Corporation Commissioner, Salem, Salem District. 5. The Assistant Commissioner, Ammapet Zone, Salem Corporation, Salem District. ... Respondents Writ petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus to call for the records of the fifth respondent in his proceedings in Na.Ka.No.12/1150/98, dated 13.08.1998, ordering recovery of a sum of Rs.70,028/- from the gratuity amount of the petitioner and quashing the same and consequently, directing the respondents 4 and 5 to pay the entire gratuity amount legally payable to the petitioner with interest at 18% from the date of the impugned proceedings till the date of payment of entire gratuity amount. For Petitioner : Mr.P.Chandrasekaran for Mr.D.J.Adinarayanan For Respondents : Mr.G.Sankaran O R D E R The petitioner has sought for a Writ of Certiorarified Mandamus to quash the order of the fifth respondent made in Na.Ka.No.12/1150/98, dated 13.08.1998, ordering recovery of a sum of Rs.70,028/- from his gratuity amount and consequently, direct the respondents 4 and 5 to pay the entire gratuity amount legally payable to him with interest at the rate of 18% from the date of the impugned proceedings till the date of payment of entire gratuity amount. 2. Brief facts leading to the Writ Petition are as follows: The petitioner has passed the SSLC and ITI Electrician Grade and was appointed to the post of Switch Board Operator (General) in the erst-while Salem Municipality, which was upgraded into Salem Corporation in year 1996. He retired from the said post on 28.02.1988 on attaining the age of Superannuation. The petitioner has filed O.A.No.4553 of 1991 on the file of the Tamil Nadu State Administrative Tribunal, Chennai for fixation of scale of pay and the Tribunal, on 02.08.1994, passed the following order: "When the Government had issued General Orders for revision of the pay scales, the Departments in which such categories are employed should have taken action promptly. The Government Order in G.O.Ms.No.762, Finance (Pay Cell) Department, dated 20.08.1986, does not indicate any date for effect for the revised scales. But delay in taking action should not result in deferring the benefit of revision to the categories eligible. Prima facie, the revision should take effect irrespective of time taken in the administrative procedures from a specified date or from the date of G.O. The reply points out that qualifications for some of the posts in the Municipalities are not the same and persons with lower qualifications are also appointed. If so, the scheme of pay scales could provide for different scales for persons with ITI Qualifications and the benefit of the Government Orders could be given to only those who possess the qualifications specified therein. The Commissioner for Municipal Administration should, therefore, initiate action to obtain orders of the Government, after identifying the categories and posts in all the Municipalities. If the persons for whom the benefit of the revised scales have been sanctioned, even if, without prior orders of the Government as required, possess the qualifications as specified in the Government Order, Recovery of Payments made, may be held in abeyance, pending further action to obtain Government Orders. As stated already, orders should issue without delay and should not be limited to prospective benefit only." 3. Apprehending that the Commissioner of Salem, the fourt h respondent, may pass an order of recovery for Rs.65,000/- from his retirement benefits, the petitioner has filed W.P.No.5056 of 1998 to forbear the fourth respondent from recovering any amount from his retirement benefits without obtaining necessary orders from the Government. The said Writ Petition was disposed of on 15.04.1998, with an observation that if any order of recovery is passed, it is open to the petitioner to challenge the same. Subsequently, based on the audit report, for the year 1992-93, the Assistant Commissioner of Corporation, Ammapet Zone, Salem by his order dated 13.08.1998, has re-fixed the salary of the petitioner from April 1986 and directed recovery of Rs.70,028/- from the gratuity payable to him. Aggrieved by the same, the petitioner has preferred the present Writ Petition for the relief as stated supra. 4. The Commissioner of Corporation, Salem, the fourth respondent in his counter affidavit has submitted that the fifth pay commission for the Tamil Nadu Government Servants came into effect from 01.06.1988, as per G.O.Ms.No.666, dated 27.06.1989. As per the above said Government Order, the pay applicable to the petitioner and similar category of the employees, was revised and the arrears of salary was also paid to him. When the payment vouchers were audited by the local fund audit departments, they raised an objection against the pay fixation of the petitioner, in Paragraph 82 of the Audit Report of the year 1992-93. Based on the above said audit objection, excess payment made to the above mentioned employees were directed to be recovered by the Commissioner of Corporation, Salem. Those who got monetary benefits along with the petitioner filed O.A.No.4553 of 1991 on the file of the Tamil Nadu Administrative Tribunal. Pursuant to the orders of the Tribunal, the action to recover the excess amount from the petitioner was stopped. However, the audit objections were pending. Meanwhile, the petitioner attained the age of superannuation and he was allowed to retire from service on 28.02.1998. When the pension proposals of the petitioner were processed, recovery of the excess payment made to the petitioner was ordered, based on the audit objection. However, it is submitted that as per the order of the Tribunal dated 02.08.1994, made in O.A.NO.4553 of 1991, the Government has not passed any orders to regularise the scale of the petitioner, based on his educational qualification. Left with no other alternative, the petitioner was allowed to retire to get his pensionary benefits. The respondents have further submitted that the quantum of gratuity and the pension commutation amount were authorised by the Assistant Director of Local Fund Audit, Salem and based on the authorisation dated 12.10.1998, the fourth respondent was left with no other option except to deduct the excess amount of Rs.70,028/-. Hence, they prayed for dismissal of the Writ Petition. 5. Mr.P.Chandrasekaran, learned counsel for the petitioner submitted that the impugned order has been passed without obtaining necessary orders from the Government and therefore, it is contrary to the orders passed by the Tribunal, dated 02.08.1995, in O.A.No.4553 of 1991. In this context, he relied on an unreported judgment in W.P.Nos.39110 to 39112 of 2002, dated 06.12.2006. 6. Learned counsel for the petitioner further submitted that as per the Tamil Nadu Pension Rules, applicable to the case of the employees of the Corporation, if a pensioner is found guilty of grave misconduct of negligence during the course of employment in a departmental enquiry or judicial enquiry, the employer can always reserve his right to withhold or withdraw the pension or part thereof. He further submitted that under Rule 1 (b) of the Tamil Nadu Pension Rules, if there is any pecuniary loss caused to the Government Servant and if in any departmental or judicial proceedings, the petitioner is found guilty, the respondents shall have the right of ordering recovery from the petitioner's retiremental benefits. In the instant case, the petitioner having been permitted to retire from service without any departmental or judicial enquiry, the respondents have no jurisdiction to initiate any action for recovery of alleged excess payment. 7. Learned counsel for the petitioner further submitted that the impugned order of recovery is in violation of the principles of natural justice as no notice was issued to the petitioner before ordering recovery. In this context, he relied on an unreported judgment in W.A.No.2285 of 2003, dated 23.03.2004, Shyam Babu Verma v. Union of India reported in 1994 (2) SCC 521, Sahib Ram v. State of Haryana reported in 1999 (Supp.) 1 SCC 18, Babulal Jain v. State of M.P & Ors. Reported in JT 2007 (6) SC 59, N.S.Balasubramanian & 18 Others v. Food Corporation of India reported in 2006 WLR 327, A.Chandra Bose and Others v. The Executive Engineer, Distribution, Tamil Nadu Electricity Board reported in 2008 WLR 164. 8. Per contra, G.Sankaran, learned counsel appearing for the third respondent submitted that based on the audit objection for the year 1992-93, dated 28.02.1998, the scale of pay applicable to the petitioner, who retired as Switch Board Operator was re-fixed as on 01.04.1996 and the excess amount of Rs.70,028/- paid to him was directed to be recovered. He further submitted that when the petitioner is not entitled to the fixation of pay as per the Fifth Pay Commission, the audit has raised an objection and therefore, there is no illegality in recovering the excess amount, to which t the petitioner is not entitled. Heard the counsel appearing for the parties and perused the materials available on record. 9. When O.A.No.4553 of 1991 was disposed of by the Tamil Nadu Administrative Tribunal on 02.08.1994, the Tribunal had directed that the Commissioner for Municipal Corporation, Salem to initiate action to obtain necessary orders from the Government, after identifying the categories and posts in all the municipalities. The Tribunal has further observed that, if the persons for whom the benefit of the revised scales of pay has been sanctioned, without prior orders of the Government, recovery of payment should be kept in abeyance, pending further action. Perusal of the order of the Tribunal, makes it clear that it is obligatory on the part of the Commissioner for Municipal Administration and his subordinates to obtain necessary orders from the Government to initiate recovery proceedings in respect of any excess payment made to certain category of employees. It is evident from the averments made in Paragraph 7 of the counter affidavit, that the Government has not passed any orders to regularise the scale of the employees based on their qualification and therefore, the Commissioner of Salem Corporation has permitted the petitioner to retire on attaining the age of superannuation and allowed pensionary benefits also. 10. The brief facts of the case in the unreported judgment in W.P.No.39110 to 39112 of 2006, dated 06.12.2006 are as follows. The petitioners therein joined municipal service in the Salem Municipality as Switch Board Operators in the year 1968. The petitioner has passed the SSLC with ITI Qualification, as required for the post of Wireman/Switch Board Operators. Pursuant to the orders in G.O.Ms.NO.762, Finance, dated 20.08.1986, the pay of the petitioners was fixed with effect from 01.04.1986. The Municipal Commissioner, Salem in his proceedings dated 29.09.1988, re- determined and fixed the lower scale of pay, without prior notice. Based on certain clarifications issued, the Director of Municipal Administration issued a circular dated 25.11.1991 and instructed all the executive authorities of municipalities/town ship committees to withdraw the higher scale of pay granted to the some of the trade posts without obtaining the orders of the Government in G.O.Ms.NO.762, Finance, dated 20.08.1986, in accordance with the instruction/clarification issued in Letter dated 23.08.1991. When the matter was agitated before the Tribunal in Chennai, in O.A.No.4553 of 1991 and O.A.No.926 of 1992, the Tribunal by a common order, dated 02.08.1994, directed that it was the duty of the Municipal Commissioner to obtain necessary orders from the Government for sanctioning the revised scales of pay. The petitioners therein and other similarly placed persons were threatened with recovery proceedings and they were paid only the provisional pension from 30.06.2001, which is the date of their superannuation. Aggrieved by the same, they filed Writ Petitions seeking for a Mandamus, forbearing the respondents 1 to 5 therein from initiating any recovery proceedings from their salary or pensionary benefits or gratuity in respect of amounts already paid, pursuant to the revised scales of pay from 01.04.1986 and also for a direction to pay the petitioners' full pension and the gratuity, along with the arrears at the rate of 18% per annum. The respondents therein, defended the case by filing a detailed counter affidavit and contended that G.O.Ms.NO.762, Finance (Pay Cell) Department, 20.08.1986, is not applicable to the petitioners and in particular, does not apply to the Switch Board Operators. On a perusal of the records and based on the submissions of the counsel appearing for the parties, this Court, has passed the following orders: "10. In the said circumstances, this Court is of the considered view that the amounts paid in accordance with the revised pay scales cannot be recovered from the petitioners, unless they have submitted an undertaking that it would be repaid, if it was found to be wrongly fixed. 11. The learned Government Advocate appearing on behalf of the respondents could not show that such an undertaking had been given by the petitioners when they had received the revised pay scales. However, since it has been contended that G.O.Ms.No.762, Finance (Pay Cell), dated 20.08.1986, would not be applicable to the petitioners, the retirement benefits due to the petitioners may not be calculated, as admitted by the petitioners at this stage of the case, based on the said Government Order. 12. Therefore, the Writ Petitions are allowed to the extent that the respondents are restrained from initiating any recovery proceedings against the petitioners, with regard to the amounts paid to them based on the revised pay scales, pursuant to the orders of the fourth respondent made in proceedings No.E1/33194/88, dated 29.09.1988. Further, the respondents are directed to pay the pensionary benefits, otherwise due to the petitioners, within a period of twelve weeks from the date of receipt of a copy of this order. No costs." The above said judgment squarely applies to the case of the petitioner, who is also a Switch Board Operator in the Salem Corporation. 11. In yet another case in W.A.No.2285 of 2003, this Court, considered the correctness of an order passed by a learned single Judge, who had quashed the order of recovery on the ground that when the employee of the Salem Corporation had been permitted to retire with sanctioned pension, no recovery can be made, after 6 six months from the date of retirement. In the appeal, filed by the Salem Municipal Corporation, the Division Bench at Paragraph 2 of the judgment, held that, "We are not inclined to interfere with the order of the learned Single Judge, as the first respondent has already retired and he has granted terminal benefits and he was also sanctioned pension on the basis of the last drawn salary. The payment, said to have been made in the year 1977, is sought to be recovered in the year 1987, i.e., after a period of nine years. In that view of the matter, the Writ Appeal is dismissed." 12. In the present case also, the petitioner was permitted to retire on 28.02.1998 and the recovery order has been made on 13.08.1998, six months after the retirement. 13. In 1994 (2) SCC 521 and 1995 Supp. (1) SCC 18 (cited supra), the Supreme Court, held that when higher pay scale was erroneously given to the Government Servant/employee, due to wrong construction of the relevant order, by the concerned authority, without any misrepresentation by the employee or no fault of others, it shall not be proper to recover any amount already paid to them. In the case on hand, the scale of the pay of the petitioner and other similar category of the employees was fixed by the respondents, on their own accord and that the petitioner is in no way responsible for the wrong construction of the Government Orders in force and therefore, the above two decisions are applicable to the case of the petitioner. 14. Following the principles laid down by the Supreme Court and after considering a catena of judgments, a learned Single Judge of this Court, in 2006 Writ LR 327 (cited supra) in Paragraph 18, held as follows: "The last submission of the learned Senior Counsel appearing for the petitioner is that even assuming without admitting that the respondents have stepped up the pay by wrong understanding of the circular as contended by the learned Additional Advocate General appearing for the respondents/Corporation, the petitioners have not misrepresented anything and the higher pay having been given, it is not open to the respondents to recover the same as held by the Supreme Court in the decision reported in 1995 Supp (1) SCC 18 (Sahib Ram v. State of Haryana and the decision of this Court reported in (2006) 1 MLJ 695 (S.A.Kanthimathi v. Director of School Education, Madras & Others). There is much force in the said contention. The learned Additional Advocate General has no answer to the said submission. The recovery made by the respondents on the alleged ground of excess pay, even assuming it was erroneously fixed, is unsustainable in view of the fact that the petitioners never misrepresented and secured the order stepping up of their pay on par with the said Rajan C.Abraham. The above referred judgments of the Supreme Court and of this Court (decision of mine) equally apply to the facts of this case. Hence, I hold all the points in favour of the petitioners and the petitioners are entitled to get refund of the recovered amount and arrears of pay." 15. In Babulal Jain v. State of M.P. & Ors. reported in JT 2007 (6) SC 59, The Supreme Court in a case of recovery of excess payment made to an employee without any notice and who had retired on superannuation, held that the State was not correct in recovering the excess sum, even without any notice to the employee and further directed that the respondents therein shall refund the sum recovered from the appellant before the Supreme Court. 16. In a latest decision in A.Chandra Bose and others v. The Executive Engineer, Distribution, Tamil Nadu Electricity Board, reported in 2008 WLR 164, a learned Single Judge, of this Court quashed the recovery on the grounds of procedural irregularity and on the ground of violation of principles of natural justice. 17. The decisions stated supra are applicable to the case on hand and the re-fixation of pay of the petitioner, after his retirement without obtaining necessary orders from the Government and the consequential recovery from his pay after retirement on attaining superannuation, are without jurisdiction and violative of principles of natural justice and therefore, I have no hesitation to set aside the impugned order and accordingly, it is set aside. 18. As regards the plea of the petitioner to direct the respondents to refund the amount recovered from the petitioner, having regard to the legal position that the High Court has no powers to exercise the extra-ordinary jurisdiction like Article 142 of the Constitution of India, where the Apex Court can issue appropriate directions to do substantial justice, the request cannot be granted. 19. In the result, the Writ Petition is allowed to the extent indicated above. No costs. 04.03.2008 skm To 1. The Secretary to Government, State of Tamil Nadu, Municipal Administration and Water supply Department, Fort St. George, Chennai-9. 2. The Secretary to Government, State of Tamil Nadu, Finance Department, Fort St. George, Chennai-9. 3. The Director of Municipal Administration, Chepauk, Chennai-5. 4. The Corporation Commissioner, Salem, Salem District. 5. The Assistant Commissioner, Ammapet Zone, Salem Corporation, Salem District. S. MANIKUMAR, J. skm W.P.NO.3686 OF 1999 04.03.2008