IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.12.2009 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.49500 OF 2006 (OA.No.1886/2001) R.M.Ramasamy ... Petitioner Vs. 1. Assistant Director of Local Fund Audit (Municipal Pension) Kuralagam, Chennai 2. Commissioner of Karaikudi Municipality Karaikudi, Sivaganga District. ... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.1886 of 2001, to call for the records of the first respondent herein passed in his Proceedings Ni.Mu.Na.O.Sa.(2)10536/2000 dated 24.03.2000 ordering the recovery of Rs.30,942/- from the petitioner's retirement benefits and consequential proceedings of the second respondent herein issued in his Na.Ka.No.B4/7888/99 dated 18.01.2001 re-fixing the pay of the petitioner and the proceedings in Na.Ka.No.A4/7888/99 dated 22.01.2001 reducing the petitioner's entire pension and retirement benefits and quash the same. For Petitioner : Mr.Ravishanmugam For Respondents : Mrs.C.K.Vishnu Priya Additional Government Pleader For R-1 Mr.R.Sivakumar for R-2 O R D E R The Original Application in O.A.No.1886 of 2001 before the Tamil Nadu Administrative Tribunal is the present writ petition. 2. The petitioner joined as a Bill Collector in the second respondent Municipality on 06.11.1969. He retired from service on 31.07.1999 on reaching the age of superannuation. While so, the impugned order dated 24.03.2000 was passed by the first respondent deducting a sum of Rs.30,942/- from the DCRG of Rs.1,05,994/-. Further, the second respondent passed an order dated 18.01.2001 re- fixing the pay of the petitioner with effect from 01.10.1983 and as https://hcservices.ecourts.gov.in/hcservices/ on 01.10.1998, re-fixed the pay at Rs.5000/- + 245/- instead of Rs.5100/- + 250/-. It is stated in the said order dated 18.01.2001 that the excess payment made would be recovered from the DCRG. The second respondent passed another order dated 22.01.2001 based on the aforesaid order dated 24.03.2000 of the first respondent deducting Rs.30,942/- from DCRG. 3. Aggrieved by the same, the petitioner filed Original Application in O.A.No.1886 of 2001 (W.P.NO.49500 of 2006) to quash the aforesaid order dated 24.03.2000 of the first respondent and the orders dated 18.01.2001 and 22.01.2001 of the second respondent. 4. The first respondent filed reply affidavit stating that the recovery of Rs.30,942/- was to be made from the pensionary benefits towards non-collection of time barred arrears of professional taxes. It is also stated that the re-fixation of pay was made in the order dated 18.01.2001 by the second respondent and the petitioner could not take any exception on the same. 5. Heard Mr.Ravishanmugam, learned counsel for the petitioner; Mrs.C.K.Vishnu Priya, learned Additional Government Pleader for the first respondent and Mr.R.Sivakumar, learned Government Advocate for the second respondent. 6. The learned counsel for the petitioner submits that the respondents could not order recovery of Rs.30,942/- from the DCRG for the alleged non-collection of time barred arrears of professional taxes. The learned counsel for the petitioner has relied on a decision of this Court in V.Nagarajan V. Commissioner, Salem Municipality, Salem reported in 1988 Writ L.R. 38 and according to the learned counsel, the said judgment squarely applies to the facts of the case. It is also submitted that this Court followed the said judgment subsequently in various judgments. 7. The learned counsel for the petitioner submits that the second respondent cannot issue the impugned order in 2001 after his retirement on 31.07.1999 and re-fix his pay with effect from 1983 after 18 years. It is further submitted that since the petitioner retired from service in July 1999, re-fixation of pay relating to much earlier period could not be done in view of the judgment of the Division Bench of this Court in D.Palavesamuthu Vs. Tamil Nadu Administrative Tribunal, represented by its Registrar, Chennai and others reported in (2006)1 M.L.J.143 . The learned counsel submits that the order of the second respondent dated 22.01.2001 ordering recovery of Rs.30,942/- based on the order dated 24.03.2000 of the first respondent is also bad and illegal. It is further submitted that nothing could be recovered from DCRG as per Rule 69 of the Tamil Nadu Pension Rules, which is applicable to the employees of the second respondent. https://hcservices.ecourts.gov.in/hcservices/ 8. On the other hand the learned counsel for the respondents seeks to sustain the impugned order, particularly, based on the reply affidavit filed by the first respondent. 9. I have considered the submissions made on either side. As rightly contended by the learned counsel for the petitioner, the respondents could not effect recovery towards non-collection of time barred professional taxes, as held by this Court in V.Nagarajan V. Commissioner, Salem Municipality, Salem reported in 1988 Writ L.R. 38. The said judgment is extracted here-under:- "1. The petitioner is a Bill Collector of the respondent. He is being penalised and is being called upon to pay the profession taxes, on the ground, he allowed their collection and recovery from the tax payers become time- barred. The view of this Court with regard to liability of the Bill Collector of a Municipality to recoup it on the allegation of his failure to collect the taxes and allowing them to become time barred, has been expressed by Mohan, J. in A.Selvaraj and others v. The Commissioner, Tiruvarur Municipality, saying-- "Having regard to these provisions, I find it rather impossible to appreciate the stand of the Municipality as to how a Bill Collector could cause pecuniary loss to the Municipality by his failure to collect the taxes. Firstly, it does not lie within his powers to allow the recovery of taxes to become time barred. The very elaborate procedure relating to collection of taxes mentioned in paragraph 65 of the Municipal Volume I would clearly indicate that it is the duty of the Executive Officer to have periodic verification of the arrears. If he had failed to do the duty and thereby the arrears of tax had become time-barred for recovery, that liability cannot be passed on to the Bill Collector." The above view has been followed by V.Ramaswami, J. as he then was, in S.Nagarajan v. Commissioner of Ramanathapuram Municipality, by Padmanabhan, J. in S.Nagarajan v. Commissioner, Ramanathapuram Municipality, and by me in S.Srinivasan and others v. The Special Officer, Tiruvallur Municipality. My attention has not been drawn to any pronouncement of this Court, taking a contrary view. The respondent in the present case seemed to have acted against the petitioner under the Tamil Nadu Municipal Service (Discipline and Appeal) Rules, but withheld recovery process on account of stay by the Government. Now, by virtue of the Government vacating the stay, the process of recovery from the salary of the petitioner is being set in motion by the present order of the respondent. It is only in that context, a writ of Mandamus is being asked for by the petitioner, to forbear the respondent from recovering from the salary of the petitioner, the time-barred profession taxes. Basically, there are no grounds at all to pin down the liability on the https://hcservices.ecourts.gov.in/hcservices/ petitioner, as now being done. The proceedings taken in this behalf are the result of a misconception of the legal position. They have to stand ignored and cannot be implemented. Taking note of the ratio of this Court, I have to hold that the petitioner cannot be mulcted with liability on this account. In view of this, this writ petition is so far as the petitioner is concerned, is allowed. No costs." 10. In the said case, recovery was made from the salary towards non-collection of time barred professional taxes. But in the present case, recovery was from DCRG. The said judgment squarely applies to the facts of this case and the impugned order dated 24.03.2000 of the first respondent and the consequential order dated 22.01.2001 of the second respondent ordering recovering of Rs.30,942/- from the DCRG is illegal and accordingly both the orders are quashed to that extent. The re-fixation of pay was done by the second respondent vide impugned order dated 18.01.2001. The re- fixation relates back to 1983 i.e., the second respondent sought to re-fix the pay after 18 years, when the employee retired from service. In those circumstances, a Division Bench of this Court in D.Palavesamuthu Vs. Tamil Nadu Administrative Tribunal, represented by its Registrar, Chennai and others reported in (2006)1 M.L.J.143 has held that such a re-fixation and consequent recovery is illegal and the relevant passage found in para 5 of the said judgment is extracted here-under:- "As rightly pointed out, the very same Tribunal has not accepted the claim of the applicant/petitioner herein. We are of the view that the course and method adopted by the Tribunal cannot be appreciated in the case of the petitioner. Even if it is accepted for the argument sake that salary of the petitioner is fixed in a wrong scale of pay, it is the fault committed by the Department and their Officers, for which the petitioner should not be penalised after a lapse of number of years that too after retirement of the petitioner." 11. The recovery from DCRG is permissible in accordance with Rule 69(1)(a)(b) of the Tamil Nadu Pension Rules only. With holding of DCRG would arise only pursuant to the decision in a disciplinary proceeding. Rule 69 (1) (a)(b) of the Tamil Nadu Pension Rules is extracted in this regard. 69 (1)(a) in respect of a Government servant referred to in sub-rule (4) of Rule 9, the Head of office shall pay the provisional pension not exceeding the minimum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant. https://hcservices.ecourts.gov.in/hcservices/ (b) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon: [Provided that no such gratuity, shall be withheld in respect of a Government servant who has been permitted to retire without prejudice to the departmental or judicial proceedings pending against him, where such departmental or judicial proceedings are only for administrative lapses not involving any pecuniary loss to the Government.] [Provided further that where a Government servant, against whom a departmental or judicial proceedings involving pecuniary loss to Government is pending, is permitted to retire without prejudice to such departmental or judicial proceedings, a portion of gratuity may be authorized after deducting the maximum computed financial loss to the Government for which the Government servant is held liable, along with un-recovered Government dues if any, of such Government servants, with interest.] 12. Hence the recovery from DCRG is bad in view of judgment referred to above and Rule 69(1)(a)(b) of the Tamil Nadu Pension Rules. 13. In view of the categorical pronouncement of the Division Bench of this Court, the impugned order dated 24.03.2000 of the first respondent and the consequential order of the second respondent dated 22.01.2001 ordering recovery of Rs.30,942/- from the DCRG is quashed to that extent and the other order dated 18.01.2001 of the second respondent re-fixing the pay and ordering consequent recovery is also quashed. 14. The writ petition is allowed on the above terms. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rns https://hcservices.ecourts.gov.in/hcservices/ To 1. The Assistant Director of Local Fund Audit (Municipal Pension) Kuralagam, Chennai. 2. The Commissioner of Karaikudi Municipality Karaikudi, Sivaganga District. 1 cc To M/s.Sudha Ravi Associates, Advocate, SR.71273. 1 cc To The Government Pleader, SR.71738. 1 cc To Mr.R.Sivakumar, Advocate, SR.71344. W.P.NO.49500 OF 2006 MSM(CO) RVL 18.01.2010 https://hcservices.ecourts.gov.in/hcservices/