(Prayer: Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus to call for the records of the second respondent's impugned order Na.Ka.No.3607/2008/Sa.Pa dated 02.05.2008 and quash the same as illegal and direct the respondents to pay the retirement benefits and other benefits payable to the petitioner.)
1. This writ petition has been filed for the issuance of a Writ of Mandamus to call for the records of the second respondent's impugned order Na.Ka.No.3607/2008/Sa.Pa dated 02.05.2008 and quash the same as illegal and direct the respondents to pay the retirement benefits and other benefits payable to the petitioner.
2. The case of the petitioner is that he worked as Salesman in Ration-Shop running under the third respondent bank. Originally, he was appointed on 05.09.1985 as temporary salesman and finally promoted as permanent salesman on 01.11.1990 through the resolution passed by the third respondent. The petitioner was retired on superannuation on 31.10.2005. His total service is 21 years and his last drawn total gross salary was Rs.2964/- only. After retirement, this petitioner should be paid by the respondents a total sum of Rs.1,15,284/- in detail the SPF amount is Rs.34,760/-, the gratuity is Rs.33,184/- and P.F Rs.47,340/-. The respondents purposely without giving any valid reason, have not settled the amount.
3. Though the petitioner was retired from service on 31.10.2007, even after lapse of two years, the service benefits were not settled. Hence, without any other alternative remedy, the petitioner issued lawyer notice, dated 17.04.2007, by demanding the above amount due to the petitioner. On receipt of the said notice, the third respondent has issued a cheque for Rs.24,190/-, but the balance amount has not been paid.
4. In the above said circumstances, the petitioner has given a representation on 26.11.2007 to the respondents demanding the balance amount. On the receipt of the said representation, the first respondent issued a direction, dated 19.12.2007, to the second respondent to settle the amount due to the petitioner within a period of 15 days. But the second and other respondents has not complied the direction of the first respondent and they have not settled the retirement benefits. As on date, the respondents have to pay a sum of Rs.91,093/-. But the respondents have not paid the benefits without any valid reason for the same.
5. In the circumstance, the petitioner has approached this Court and filed a writ petition in W.P(MD)No.361 of 2008, seeking a direction to respondents to pay certain benefits and other benefits to the petitioner. While considering the petitioner's case, this Court, by an order, dated 18.03.2008, passed an order directing the respondents to pass orders on the representation made by the petitioner, dated 26.11.2007, within a period of one month from the date of receipt of a copy of that order. The said order was passed without expressing any opinion about the merits of the matter and in the said order, this Court also directed that if the second respondent finds that the amount has to be settled to the petitioner, the second respondent is directed to do so within one month from the date of receipt of a copy of that order.
6. Based on the above said order, the present impugned order has been passed by the second respondent by withholding them the retirement benefits including gratuity, PF amount on the ground that there was an excess payment was made to the petitioner, while he was in service and auditing objection was passed by the second respondent as per G.O.No.131. Challenging the said impugned order, dated 02.05.2008, the present writ petition has been filed.
7. Two separate counter affidavit have been filed by the respondents 1 and 3, wherein, it is stated that this writ petition is not maintainable on the ground that it is well settled law, that, any dispute in payment of P.F. amount has to be raised before the Regional Provident Fund Commissioner or Assistant Provident Fund Commissioner, as the case may be, under Section 7(A) of the Employees Provident Fund Miscellaneous Provisions Act, 1952. Similarly, in respect of any claim or dispute on payment of gratuity amount has to be raised before the controlling Authority (Assistant Commissioner of Labour (gratuity payment) under Section 7(4) of the payment of gratuity Act, 1972. In view of the existence of alternative and efficacious remedies available in the above two statutory provisions, there is no need and necessity to invoke the special or extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India, which is clearly held by the Honourable Apex Court in A.I.R 1999 S.C.P.1786 and 1999, 4 S.C.C.P.43 and hence, the writ petition is not maintainable.
8. The respondents also admitted in their counter stating that admittedly the petitioner was appointed on 05.09.1985 and permanently posted as Salesman of the Village Fair Price Shop of the third respondent bank and retired by superannuation on 31.10.2005. The third respondent also stated that since there was no recovery of agricultural loans from the loanees/ farmers, the survival of the Co-op. Credit Institutions in the whole State was at stake and number of Co-op. Credit Societies have been liquidated by Government orders. Fortunately, the third respondent bank escaped from such a contingency and continued to make both ends meet, struggling for it's survival.
9. In the above circumstances, on such a contingencies narrated above the State Government by invoking the Provisions of Section 182 of the Tamil Nadu Cooperative Societies Act 1983, has issued the G.O.Ms.No.131, Food and Cooperative Department, dated 04.06.1999, directing all the Cooperative Societies to reconsider the 12(3) or 18(1) settlement of the ID Act already entered into by the Management and the employees wherever the 2 to 3% norms in the establishment and contingent expenses have been violated or exceeded. Based on the directions of the abovesaid G.O., and the Registrar's Circular thereon, the third respondent bank has drastically revised the entire pay structures of the employees of the P.A.C Bank Staff, excluding the village Fair Price shop salesman. As regards the village Fair Price shop Salesman attached to the P.A.C Banks, the pay fixation was decided under the G.O.Ms.No.183 dated 16.06.1995 of the Cooperative Public Distribution System, Government of Tamil Nadu in the time scale of Rs.430-10-450-15-525. Subsequently, the village Fair Price shop salesman's pay scale structure was suitably revised in the G.O.Ms.No.238, Co-op Food and Consumer Protection Department, dated 19.10.2000 as Rs.1250-25-1325-45-1640. Prior to the issue of the above said two G.O's relating to the salary of the village Fair Price shops salesman, the respondent bank has already fixed the Pay Scales of the petitioner salesman as Rs.1500-25-1625-30-1775-40-1975-50-2225-60-2525, as per 18(1) settlement under I.D. Act entered into between the management and the employees and the petitioner was drawing a basic pay of Rs.1575/- on 01.07.1997. On the directions of the abovesaid G.Os and the Registrar's circular instructions, the 18(1) settlement already in vogue was cancelled with the consent of the petitioner salesman and his pay scale was suitably reduced revised and refixed by the third respondent bank. In view of the abovesaid G.O.No.183, dated 16.06.1995 and G.O.No.238, dated 19.10.2000 coupled with the G.O.Ms.No.131 dated 04.06.1999, the departmental auditors have objected the excess payment of salary and the EPF contributions to the petitioner from the audit periods of the years 2001-02 to 2004-05 (for 4 years period) in the petitioner's salary already paid to an extent of Rs.61,402.15 NP and incorporated the same in the Annual Audit report of the said 4 years period. Besides a sum of Rs.27,283.60 NP paid towards petitioners L.I.C endowment policy of P.F premium amount by the respondent bank from the years 1999-2000 to 2003-2004 (for five years period) which was also objected by the departmental auditors. Therefore, the third respondent bank has a contingency and dire necessity to recover these amounts from the retrial benefits with a view to avoid the loss to the respondent bank. The respondents also paid L.I.C., endowment Policy of P.F., amount to the petitioner, which is to be paid by the petitioner and there is a balance amount of Rs.8,161.75 np due to the petitioner under the head of LIC endowment policy maturity amount was duly adjusted by the third respondent bank towards the audit objected excess salary paid amount. As such there is no amount of Rs.91,093/- as pending disbursement/settlement in the third respondent bank as stated in the affidavit of the petitioner. Therefore, the order dated 02.05.2008 passed by the 2nd respondent is not illegal and unlawful and the same is correct and a justifiable one.
10. The third respondent further stated that as per the provisions of the Special by law relating to the service conditions of the employee of the third respondent bank, more particularly, the rules of Employees benefit Act, the employee shall be responsible for and liable to make good and financial loss, which the bank may sustains on account of the negligence etc., of the employee. As per Rule 30 and 21, the respondent bank will make an arrangement as early as possible after the account has been closed to pay of the sum, due to the creditors, any sum due to the respondent bank shall be recovered before finally settling the account to the employee. The third respondent also stated that when there are provisions in the third respondent banks special by laws, rules and regulations, any forfeiture of the amounts from the gratuity or retrial benefits payable to the employee is justifiable. (Mashkoor Ahemed vs. Union of India 2007) LLR.(SN)P.318 Del.H.C). Forfeiture of gratuity amount to the extent of shortage or assessed misappropriation in justified (P.D. Chinyanna is Karnataka Agro Industries Corporation Ltd., Bangalore., 2001 LIC P.19 (2001), 85, FLR P.814 2001 (III CLR) P.846 (2001) LLR P.250 (Kark. HC).
11. The respondent bank has also come forward by saying that the third respondent bank had, on a number of occasions, urged the petitioner to remit the stock deficit amount, the excess salary paid which was objected by the departmental auditors and the remittance of the respondent bank for the employee's LIC endowment policy E.P.F to which, the petitioner never cared.
12. Therefore, in the abovesaid circumstances, the third respondent bank has no other alternative except to recover the same at the time of retirement from the retirement benefits and passed the impugned order of recovery and there is no violation of Principles of natural justice .
13. The third respondent also stated that no amount was withheld from the EPF amount by the respondent bank. The inadvertent mistaken remittance in the employee's LIC endowment policy of P.F amount alone was recovered/withhold which is not against any cannons of law. Similarly, the withholding of gratuity amount is backed by the provision of Section -4(6)(b) of the payment of gratuity Act-1972 coupled with special bylaw provisions relating the service conditions of the employees of the third respondent bank and also by the decided case laws reference above. Therefore, the third respondent has come forwarded by saying that there is no violation or incorrect in the present impugned order dated 02.05.2008. Hence, the third respondent is seeking to dismiss the above writ petition.
14. Heard Mr.T.Vadivelan, learned counsel for the petitioner as well as Mr.Aairam K.Selvakumar, learned Government Advocate appearing for the respondents 1 and 2 and the Mr.K.M.Vijayakumar, learned counsel for the third respondent.
15. Admittedly, the petitioner was employed as permanent Salesman in village Ration-Shop of the third respondent bank from 05.09.1985 and retired on superannuation on 31.10.2005. After putting up a considerable service of 21 years in the third respondent bank, the petitioner was permitted to retire from service on 31.10.2005 and his last drawn salary is Rs.2964/- only.
16. After retirement, it is the bounden duty of the respondents to pay service and monetary benefits. But even after the petitioner's lawyer notice dated 17.04.2007 and the representation dated 26.11.2007, but no suitable action was taken. In fact, the first respondent, by his letter, dated 19.12.2007, directed the second respondent to settle the amount due to the petitioner within a period of 15 days which was not taken care of.
17. While the proceedings are initiated above without taking care of the representation made by the petitioner the petitioner was forced to approach this Court and file a writ petition in W.P(MD)No.361 of 2008. This Court, by an order, dated 18.03.2008, directed the respondents to pass appropriate orders on the petitioner's representation, dated 26.11.2007. After passing the order by this Court, the second respondent has passed the impugned order by stating that there was excess amount has been paid and as per G.O.Ms.No.131 passed by the second respondent, they have withhold the petitioner's retirement benefits and the said order was passed on 02.05.2008 i.e., after the three years of the petitioner's retirement, that too, the third respondent has passed the present order by complying the order passed by this Court. Therefore, it is very made clear that the respondents have not shown their interest on their employees while they were serving or retiring from the service.
18. Even otherwise, if there was excess payment made to the petitioner, the respondents having power to claim the same or recover the same by giving fair opportunity to the petitioner within the stipulated period of time. But on the fair reading of the impugned order it is clearly stated that the second respondent has not given any clear picture about the excess payment made to the petitioner, in which period that amount was paid. The second respondent has also not stated in the impugned order that the proceedings are initiated against the petitioner for recovery of the excess amount. Therefore, in the absence of the any proceedings mentioning in the impugned order would clearly show that only to comply the order of this Court made in the above writ petition in W.P(MD)No.361 of 2008, dated 18.03.2008, the present impugned order has been passed.
19. Even the particulars given in the impugned order about the amount paid and recovery to be made, that was not properly given by the second respondent by in which whether the second respondent has issued any show cause notice by calling upon the petitioner to give explanation about the excess payment of the amount. When the petitioner was in service, it is alleged that they paid the excess amount to the petitioner, but they have not given any excess payment paid by whom. The respondents have also not stated any where in the counter filed by both of them that there was any misrepresentation or fraud committed on the part of the employee and there is no mentioning about the excess payment made by applying wrong interpretation of the rule or order. Hence, the employee has right because the Court exercise equity jurisdiction. This was held by the Honourable Apex Court in (2009)3 SCC 475 (Syed Abdul Qadir and others vs. State of Bihar and others) and by the Division Bench of this Court in (2009)5 MLJ 1 (Chief Engineer (General), Public Works Department, Chennai-5 vs. M.Thanasekaran.
20. Admittedly, time and again, this Court and the Honourable Apex Court very clearly held that if any excess payment was made to the employee, the higher authority of such employee having right to make recovery of the said excess amount, if the said excess amount was made by misrepresentation or fraud on the part of the employee. But the authorities concerned continuously passing this kind of orders by stating that there was excess amount paid to the employee, like the petitioner. The respondents authorities have not shown their presence of mind and with total non-application of mind they are continuously passing this stereo type of orders at the fake end of retirement of the concerned employees that too without giving any fair opportunity to the employees to say about their stand.
21. In the case on hand, the second respondent, who was totally violating the principles of natural justice, without following any rule of law and natural justice or obeying the order passed by this Court and the Honourable Apex Court that if any excess amount is paid to the employees without misrepresentation or fraud on the part of the employee, passed this kind of the impugned orders at the fake end of the retirement of the employee or after the retirement of the employee.
22. It is seen from the impugned order that it is a very meagre amount demanding a sum of Rs.91093/- by the petitioner. All along the petitioner was employed with minimum salary, but his retirement benefits was very meagre. In fact, if the said meagre amount has been disbursed to the petitioner, it would useful for his children education or marriage or for fulfilling his family sufferring. The authority concerned should apply their mind properly to both into the family situation of the retired employees while about disbursing the service benefits. Without considering all these, the second respondent has passed the impugned order by saying that there was excess amount paid to the petitioner and the same was recovered through the present impugned order. This order is totally illegal and against the principles of natural justice. Therefore, the impugned order is liable to be set aside.
23. Accordingly, I am passing the following order:-
(a) the writ petition is allowed and the impugned order in Na.Ka.No.3607/2008/Sa.Pa dated 02.05.2008 passed by the second respondent is set aside.
(b) the respondents hereby are directed to settle the entire service benefits due to the petitioner with 9% interest within 4 weeks, failing which, the respondents should pay at 18% interest.
(c) the said exercise shall be carried out within a period of four weeks from the date of receipt of a copy of this order. No costs.