THE HONOURABLE MR v. The Executive Engineer

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :07.12.2007CORAM :THE HONOURABLE MR.JUSTICE V.DHANAPALANW.P.Nos.15115 to 15117 of 1998A.Chandra Bose... Petr. in W.P.No.15115/1998S.Raju... Petr. in W.P.No.15116/1998D.Michael... Petr. in W.P.No.15117/1998vs.The Executive Engineer,Distribution,Tamilnadu Electricity Board,Kallidaikurichi,Tirunelveli District.... RespondentWrit Petitions filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorari calling forthe records relating to the impugned orders of the respondent inproceedings No.se.po./v/kallidai/ ke.me/e.ni.vu/ko.thanikkai/476a/98,No.se.po./v/kallidai/ke.me/e.ni.vu/ko.thanikkai/475/98 andNo.se.po./v/kallidai/ke. me/e.ni.vu/ko.thanikkai/476/98, dated06.07.1998 and quash the same.For Petitioner in each WP:Mr.D.HariparanthamanFor Respondent in each WP:Mrs.V.Yamuna DeviC O M M O N O R D E RThe question involved in these matters being common, they arebeing decided by this common order.2.Brief facts leading to the filing of these writ petitionsare, as under:(a)The petitioners, namely, A.Chandra Bose,S.Raju and D.Michael were working as watchmen in theoffice of the Junior Engineer, Nanguneri Rural, TamilNadu Electricity Board, which is under the control ofthe respondent. Pursuant to the direction of theSuperintending Engineer, Tirunelveli ElectricityDistribution Circle, by way of telegram, to terminatethe services of the Security Guards employed oncontract basis in Office/Stores on 30.04.1993 and tomake local management in their place, the respondentpassed an order dated 28.04.1993, temporarily diverting https://hcservices.ecourts.gov.in/hcservices/ the petitioners to the substores at Vaniankulam witheffect from 30.04.1993 till the joining of the regularSecurity for watch and ward duty.(b)According to the petitioners, they wereserved the copy of the order dated 28.04.1993 on29.04.1993 and were sent on deputation to Vaniankulamon a temporary measure with assured payment of dailyallowance. As assured by the department, thepetitioners were paid daily allowance till theycontinued on deputation. While that being theposition, the respondent passed an order dated25.04.1994, permanently transferring and posting thepetitioners, namely, A.Chandrabose and S.Raju in theVaniankulam Civil PSC yard and withdrawing thepetitioner, namely, D.Michael from deputation andretaining him in Nanguneri Rural itself. Thepetitioners namely, A.Chandra Bose, S.Raju, D.Michael,received a sum of Rs.10,536/-, Rs.6111/- andRs.12,016/-, respectively, as daily allowanceadmissible under the rules during their period ofdeputation. (c)While so, the respondent passed an order ofrecovery of the daily allowance paid to the petitionersduring their period of deputation, on 06.07.1998,stating that the audit branch raised objection for thepayment of daily allowance. Thereafter, thepetitioners' Union wrote a letter dated 05.08.1998 tothe Superintending Engineer, Tirunelveli ElectricityDistribution Circle not to make any recovery of theamount paid as daily allowance to the petitionersduring the period of deputation. Challenging theimpugned orders of the respondent dated 06.07.1998, thepetitioners have come up before this Court for therelief aforesaid.3.In the counter affidavit, the respondent has stated asfollows:(a)The petitioners were deputed to VaniankulamStores for security purpose as Watchmen and theyreported duty at Vaniankulam on 30.04.1993. TheSuperintending Engineer, Tirunelveli sent a Telegraphicorder on 28.04.1993 directing the respondent to relievethe petitioners on 30.04.1993 A.N. by making localarrangements. Based on the instructions of the higherofficial, the services of the petitioners were withdrawnon 30.04.1993 A.N. by making local arrangements. Inview of the relief of the petitioners, they wereutilised in the P.S.C. Yard, Vaniankulam.(b)The petitioners claimed T.A. from the existing https://hcservices.ecourts.gov.in/hcservices/ station to Vaniankulam and the said claim was objectedto by the Audit. Based on the Audit Slip, recoveryorder was passed to recover the excess daily allowance.(c)The services of the petitioners were utilisedas Watchmen for security purpose at P.S.C. Yard,Vaniankulam from May 1993 to April 1994. (d)The T.A. Bills were generally paid to theindividuals subject to Audit objections if any,irrespective of orders issued by the competentauthority. If any procedural flaw is found, such flawhas to be set right. Accordingly, the T.A. Bills werepassed and paid to the petitioners and others wereaudited. As per the directions of the Audit Wing,recovery orders were passed. Therefore, the petitionersare liable to pay the excess amount paid to them by theBoard. In such circumstances, it is the case of therespondent that the claims of the petitioners are nottenable and that the writ petitions are liable to bedismissed.4.Heard Mr.D.Hariparanthaman, learned counsel for thepetitioners and Mrs.V.Yamuna Devi, learned counsel for therespondent.5.Learned counsel for the petitioners submitted that thepetitioners went on deputation only on the assurance of dailyallowance given by the department. According to the learnedcounsel, the respondent is estopped from going back on theirpromise and they cannot validly pass the impugned order contrary totheir promise particularly, when the petitioners have acted ontheir promise. Learned counsel contended that though both therespondent as well as the Superintending Engineer, TEDC wrote tothe Board categorically expressing their view that the petitionerswere paid daily allowance as admissible in rules, it is not fair onthe part of the respondent to order recovery, which is violative ofArticle 14 of the Constitution of India. Learned counsel furthercontended that the impugned orders entail civil consequences, sinceno opportunity was given to the petitioners before passing of thesame and if the recovery is made, the petitioners will be put togreat hardship and difficulty. 6.In support of his contentions, learned counsel for thepetitioner relied on a decision reported in 2007 (1) L.L.N. 806, inthe case of N.S.Balasubramanian and others vs. Food Corporation ofIndia, New Delhi and others, wherein this Court has held as under:"18.The last submission of the learned seniorcounsel appearing for the petitioner is that evenassuming without admitting that the respondents havestepped up the pay by wrong understanding of thecircular as contended by the learned Additional https://hcservices.ecourts.gov.in/hcservices/ Advocate General appearing for therespondents/Corporation, petitioners have notmisrepresented anything and the higher pay having beengiven, it is not open to the respondents to recover thesame as held by the Supreme Court in the decisionreported in Sahib Ram vs. State of Haryana (videsupra), and the decision of this Court reported inS.A.Kanthimathi vs. Director of School Education,Madras and others [2006 (3) L.L.N. 301] (vide supra).There is much force in the said contention. The learnedAdditional Advocate-General has no answer to the saidsubmission. The recovery made by the respondents onthe alleged ground of excess pay, even assuming it waserroneously fixed, is unsustainable in view of the factthat the petitioners never misrepresented and securedthe order stepping up of their pay on par with the saidRajan C.Abraham. The above referred judgments of theSupreme Court and of this Court (decision of mine)equally apply to the facts of this case. Hence I holdall the points in favour of the petitioners and thepetitioners are entitled to get refund of the recoveredamount and arrears of pay." 7.When the aforesaid decision was taken on appeal, the FirstBench of this Court in 2007 (1) L.L.N. 814 has held as under:"11.We are of the view that the respondents' claimis similar to the claim of the petitioners before theKerala High Court. When the petitioners before theKerala High Court were paid the recovered amountpursuant to the order passed by the Kerala High Court,which has been confirmed by the Apex Court, therespondents herein are also entitled for the refund ofthe recovered amount and the arrears of pay. Evenassuming that the appellant Corporation had stepped upthe pay of the respondents on the wrong understanding ofthe circular, dated 9 July 1997, as contended by thelearned counsel for the appellant Corporation, therespondents have not misrepresented anything and thehigher pay having been given. It is not open to theappellant-Corporation to recover the amount as held bythe Supreme Court in the decision in Sahib Ram vs. Stateof Haryana [1995 Suppl. S.C.C. 18], and the decision ofthis Court in S.A.Kanthimathi vs. Director of SchoolEducation, Madras and others [2006 [3] L.L.N. 301]. Theundertaking given by the employees relates to housebuilding advance, conveyance allowance, leave travelconcession, etc., and cannot be used to justifyunauthorised and illegal deductions made from theamounts payable to the employees."8.In response, learned counsel for the respondent submittedthat the petitioners claimed T.A. from the existing station toVaniankulam; as a general practice, T.A. Bills were paid to the https://hcservices.ecourts.gov.in/hcservices/ individuals subject to Audit objections, if any, irrespective ofthe orders passed by the competent authority. Since the said claimwas objected to by the Audit, based on the Audit Slip, recoveryorders were passed to recover the excess daily allowance paid tothe petitioners. Therefore, she contended that the claims ofpetitioners are not tenable and are liable to be dismissed. 9.Learned counsel for the respondent, to support hercontentions, relied on a decision reported in (2000) 9 SCC 187 inthe case of Union of India and others vs. Sujatha Vedachalam (Smt.)and another, wherein it was held as under:"3.For the reasons stated in Comptroller &Auditor General of India vs. Farid Sattar decided todayand decision of this Court in Special Leave PetitionNo.9324 of 1996 titled Chandan Saha vs. Union of Indiadecided on 25.04.1996, the impugned orders andjudgments under appeal are set aside. Both theseappeals are allowed. There shall be no order as tocosts. However, so far as recovery of excess pay paidto the respondents is concerned, the appellants mayrecover the said amount in easy instalments which maybe spread over for fifteen years or till the date ofretirement, whichever is earlier."10.I have given careful consideration to the submissions madeby the learned counsel on either side and have also given dueconsideration to the decisions relied on by them.11.Admittedly, the petitioners namely, A.Chandra Bose, S.Rajuand D.Michael were working as watchmen under the control of therespondent. Pursuant to the telegraphic communication dated28.04.1993 from the Superintending Engineer, Tirunelveli to therespondent, to terminate the services of the Security Guardsemployed on contract basis in Offices/Stores and to make localmanagement in their place, the respondent passed an order dated28.04.1993, temporarily diverting the petitioners to the Substoresat Vaniankulam with effect from 30.04.1993 till the joining of theregular Security for Watch and Ward duty. The petitioners wereserved the copy of the order dated 28.04.1993 on 29.04.1993 andwere sent on deputation to Vaniankulam on a temporary basis withassured payment of daily allowance. As assured by the department,the petitioners were paid daily allowance till they continued ondeputation.12.It is seen that the petitioners, namely, A.Chandra Boseand S.Raju, who were temporarily diverted to Substores atVaniankulam by the order of the respondent dated 28.04.1993 werepermanently transferred and posted to the Vaniankulam PSC Yard bythe proceedings of the respondent dated 25.04.1994 inMemo.ADS/A.4/F.Watchman/D.501/94 and were directed to report dutyto the Asst. Executive Engineer/Civil/Vaniankulam; whereas thepetitioner namely, D.Michael, who was also temporarily diverted toSubstores at Vaniankulam by the order of the respondent dated https://hcservices.ecourts.gov.in/hcservices/

28.04.1993 was withdrawn from Vaniankulam and has been retained inNanguneri Rural Section by the proceedings of the respondent dated25.04.1994 in Memo.ADS/A.4/F.Watchman/D.502/94 with a direction toreport duty to the Junior Engineer, Rural, Nanguneri, immediately.13.Further, it is seen from the proceedings of the ExecutiveEngineer, TNEB, Kallidaikurichi in LetterNo.EE/D/KIC/ADS/A.3/D.No.148/95 dated 15.02.1995, addressed to theSuperintending Engineer, (AADO/ADM-I), TKEDC, Tirunelveli-II thatbased on the instructions issued in the I.M. cited to relieve theSecurity Guards on 30.04.1993 AN by making local arrangements, theservices of the Security Guards in (i)P.S.C. Yard, Valiankulam(ii) Sub Stores, Kallidaikurichi and (iii) Sub station, Melakallur,Veeravanallur, Moolaikaraipatti and V.K.Puram were withdrawn on30.04.1993 AN by making local arrangements and in view of therelief, the services of the petitioners were utilised in PSCyard/Vaniankulam as the Stores is located in an isolated place. Inthe said proceedings, the Executive Engineer, the respondent hereinmade a request to the Superintending Engineer that the question ofrecovery of the TA claim preferred by the watchmen is not genuine.For clear understanding, it would be useful to extract the relevantportion of the proceedings, which reads as under:"Therefore I submit that the question of Recoveryof the TA claim preferred by the watchman is not agenuine one in the case of PSC yard/Vaniankulam basedon the audit since the services of the watchman areessential considering the place of stores located inisolated area as well as the worth of materialsavailable in the stores."14.It is further seen that the Superintending Engineer,Tirunelveli Electricity Distribution Circle, Tirunelveli-11, videhis proceedings dated 23.12.1997 inLr.No.SE/TEDC/ETM/AS/F.Audit/23/97, has requested the ChiefEngineer, Distribution, Tirunelveli Region, Tiruneveli-11, not torecover the daily allowance paid to the petitioners, who weretemporarily deputed to work at Vaniankulam Substores on thefollowing grounds:"(a)The staff have been temporarily diverted fromthe Kallidaikurichi division offices under emergencybasis immediately on the withdrawal of contractsecurity Guards from the Vaniankulam Stores, wherematerials worth more than 20 lakhs had been stored.(b)The Vaniankulam stores is situated in anisolated area and the staff had to be diverted astemporarily basis with a hope of posting suitablesubstitutes which could not be done subsequently forwant of hands. No allotment of watchman was receivedin the place of the contract security men suddenlywithdrawn. However from 4/94 onwards they have beenpermanently posted. https://hcservices.ecourts.gov.in/hcservices/ (c)As these watchman are Last Grade employees,such a huge amount of recovery as proposed by the BoardOffice Audit Branch is unjustified. "15.But, the request of the respondent to the SuperintendingEngineer, Tirunelveli was not taken into account, as the BoardOffice Audit Branch raised objections in the payment of dailyallowance to the petitioners from May 1993 to April 1994.Ultimately, the respondent passed the impugned orders dated06.07.1998, ordering recovery of the daily allowance paid to thepetitioners.16.A perusal of the entire proceedings and communicationsshows that the orders of recovery were not passed in accordancewith the procedures contemplated in law. In my opinion, theimpugned orders suffer from legal infirmities for the followingreasons :(i)Since the Board Office Audit Branch raisedobjections to the payment of Daily Allowance to thepetitioners from May 1993 to April 1994 , impugnedorders of recovery of Daily Allowance were passedwithout notice and the petitioners were not given anopportunity to submit their explanation as to why theDaily Allowance should not be recovered from them.(ii)The petitioners agreed to go on deputationimmediately as required by the department on assuranceof payment of daily allowance. Though they were paidthe daily allowance as promised, the question ofrecovery of daily allowance paid to them based on theaudit is not proper, since the services of the watchmenare essential considering the isolated area in whichthe stores is located as well as the worth of materialsavailable in the stores. (iii)The orders of recovery passed by therespondent on the alleged ground of objections raisedby the Board Office Audit Branch are unsustainableinasmuch as the respondent has deputed them toVaniankulam assuring payment of daily allowance and itis also not the case of the respondent that thepetitioners claimed allowance on their own and in theabsence of any fault on their part, the recoveryordered to be made without the procedure contemplatedis unsustainable;(iv)As the petitioners are last grade employees,such a huge amount of recovery ordered by therespondent, based on the audit would cause greathardship to the petitioners. 17.Looking at any angle, firstly on the ground of proceduralirregularity, secondly on the circumstances under which the https://hcservices.ecourts.gov.in/hcservices/ petitioners were sent on deputation and thirdly, the fact that thepetitioners are last grade Board servants, the impugned orders ofthe respondent are vitiated by improper procedures and are inviolation of the principles of natural justice. In such view ofthe matter, the impugned orders of recovery of daily allowance fromthe petitioners passed by the respondent on 06.07.1998 are liableto be quashed and they are accordingly quashed.In fine, the writ petitions are allowed. No costs. AbeSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The Executive Engineer,Distribution,Tamilnadu Electricity Board,Kallidaikurichi,Tirunelveli District.•One cc to Mr. D. Hariparanthaman, Advocate SR 73034•+ One cc to Mr. M. Vaidyanathan, Advocate sR 73103SCD (co)sg 14/12/07order in W.P.Nos.15115 to 15117 of 199807.12.2007