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IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M. SUBRAMANIAM, J.
S. Adhinarayanan & Others - Appellant
Versus
Tamil Nadu Generation & Distribution Corporation Ltd., Rep.by its Chairman and Managing, Chennai & Others - Respondent
W.P. Nos. 28246 to 28250 of 2014 & M.P.No.1 of 2014 & M.P.No.1 of 2015
Decided On : 11-07-2022
Certiorari - Pay fixation - Opportunity to be provided before re-fixation of pay - Excess amount paid cannot be recovered from retired employees - Writ Petitions allowed
Fact of the Case:
The petitioners, retired employees of TANGEDCO, sought to quash the orders of pay refixation and consequential recovery, as their pay was stepped up based on representations but later cancelled without opportunity for explanation.
Finding of the Court:
The court found that the orders of pay refixation were issued without affording an opportunity to the employees, and the excess amount paid cannot be recovered from retired employees. The court directed re-fixation of pay with show cause notice and opportunity, and repayment of any recovered excess pay.
Issues: The issues revolved around the cancellation of pay stepping up without providing an opportunity to the employees and the recovery of excess amount paid to retired employees.
Ratio Decidendi: The court held that any order affecting the pay of an employee must be issued only after affording an opportunity to the employee, and excess amount paid cannot be recovered from retired employees.
Final Decision: The court allowed the Writ Petitions, quashed the impugned orders, directed re-fixation of pay with show cause notice and opportunity, and ordered repayment of any recovered excess pay.
JUDGMENT
(Prayer: Writ Petition filed Under Article 226 of the Constitution of India, to issue a Certiorari, calling for the records of the 2nd respondent in connection with Memo No.003755/1/G.17/G.172/F.Pay Ano/2009-11, dated 22.09.2014 issued by the 2nd respondent to the 3rd respondent and quash the same.
Writ Petition filed Under Article 226 of the Constitution of India, to issue a Certiorari, calling for the records of the 2nd respondent in connection with Memo No.003755/1/G.17/G.172/2009-10, dated 22.09.2014 issued by the 2nd respondent to the 3rd respondent and quash the same.
Writ Petition filed Under Article 226 of the Constitution of India, to issue a Certiorari, calling for the records of the 2nd respondent in connection with Memo No.003755/1/G.17/G.172/2009-9, dated 22.09.2014 issued by the 2nd respondent to the 3rd respondent and quash the same.
Writ Petition filed Under Article 226 of the Constitution of India, to issue a Certiorari, calling for the records of the 2nd respondent in connection with Memo No.003755/1/G.17/G.172/F.Pay Ano/2009-12 dated 22.09.2014 issued by the 2nd respondent to the 3rd respondent and quash the same.
Writ Petition filed Under Article 226 of the Constitution of India, to issue a Certiorari, calling for the records of the 2nd respondent in connection with Memo No.003755/1/G.17/G.172/F.Pay Ano/2009-8 dated 22.09.2014 issued by the 2nd respondent to the 3rd respondent and quash the same.)
Common Order
1. The orders of refixation and consequential recovery are sought to be quashed in the present writ petitions.
2. The petitioners were the employees of the TANGEDCO and retired from service.
3. The grievances of the writ petitioners are that their pay was stepped up based on their representations in comparison with their juniors. In other words, the revision of pay was effected by stepping up the pay of the writ petitioners on par with their juniors. Subsequently, the Respondent-Board cancelled the stepping up of pay on the ground that the comparison was erroneous. The audit objection was raised and the said audit objection resulted in revision of pay and consequential recovery.
4. The learned counsel for the petitioners made a submission that the impugned orders have been passed without giving any show cause notice or opportunity to the writ petitioners. There was no misrepresentation on the part of the writ petitioners and they have made representations to step up their pay on par with their juniors and the benefits were granted. Subsequently, the said benefits granted were cancelled without giving any opportunity.
5. The learned counsel appearing on behalf of the respondents objected the said contentions by stating that the comparison made by the petitioners were found to be erroneous and there was an audit objection regarding the stepping up of pay granted to the petitioners and based on the said audit objection, the orders earlier passed, stepping up of pay were cancelled and the excess amount paid to the petitioners were sought to be recovered. Thus, there is no infirmity in respect of the orders impugned.
6. This Court of the considered opinion that any order, affecting the pay or emoluments of the employee, must be issued only after affording an opportunity to the employee concerned. In the present cases, the respondents are unable to establish that the show cause notices were issued to the writ petitioners. That apart, the stepping up of pay was granted pursuant to the representations submitted by the writ petitioners. Thus, if at all, any error is identified, opportunity must be provided to the employee concerned.
7. The learned counsel for the petitioners brought to the notice of this Court that all the writ petitioners had already retired from service and now pensioners. This being the factum, the excess amount already paid, if any, cannot be recovered from the writ petitioners. However, the errors in the matter of fixation of pay can be corrected by the authorities after issuing show cause no
Opportunity must be provided before re-fixation of pay, and excess amount paid cannot be recovered from retired employees.
The central legal point established in the judgment is that any order affecting the rights of an employee, such as the fixation of pay, should be passed only after affording an opportunity for a hear....
The central legal point established is that any order affecting the rights of an employee should be passed only after affording an opportunity to the employee concerned, in accordance with the princi....
The central legal point established is that any order affecting the rights of an employee, such as pay re-fixation and recovery, should be passed only after providing an opportunity for the employee ....
The central legal point established is that any order affecting the rights of an employee, such as the fixation of pay, should be passed only after affording an opportunity for hearing to the employe....
The authority can rectify pay fixation errors at any time, but recovery of excess payments after a long delay may be unjust and cause hardship.
Any order affecting the rights of the employee must be passed only after providing an opportunity to the employee.
Erroneous fixation of pay or pension can be corrected, but recovery after retirement causing hardship is not sustainable without evidence of misrepresentation or written undertakings.
Recovery of alleged excess salary payments from Group 'C' or 'D' employees, which occurred due to administrative error without any misrepresentation by the employee, is impermissible in law.
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