Writ Petition No. 5027 of 2007 · Madras High Court
Case at a glance
Key paragraphs
- Para 77. Further, the recovery of the excess amount said to have beenpaid to the petitioner cannot be made, as held by this Court in itsorder, dated 27.6.2008, made in W.P.No.16150 of 2006 and as held inthe following decisions:4.1) In Shyam Babu Verma V. Union of…
- Para 99. However, it is open to the respondents to take appropriateaction concerning his promotion to the post of Work Inspector Grade-I, and with regard to the re-fixation of his salary and otheremoluments due to him, in accordance with law, after givingsufficient opportunity to the petitioner…
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 06-07-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.5027 of 2007(O.A.No.3114 of 2001)A.Shajatha Shareef.. PetitionerVersus1. Superintending Engineer, Public Works Dept-WRO,Pennar Basin Circle, Thiruvannamalai.
Executive Engineer, Public Works Dept-WRO,Lower Pennar Basin Divn. Villupuram.
Asst. Executive Engineer, Public Works Dept-WRO,Lower Pennar Basin Sub-Divn. Thirukkovilur... Respondents. Prayer: Original Application No.3114 of 2001 filed before the TamilNadu Administrative Tribunal, on abolition, transferred to the fileof this Court and renumbered as Writ Petition No.5027 of 2007,seeking for a writ of Certiorari to call for the records of therespondents in connection with the impugned order passed by the 2ndrespondent in proceedings No.919/2000/Atchi 1 dt 18.4.2001, and quashthe same. For Petitioner : Mr.K.Venkatramani Senior Advocate for T.M.Ayngara PrabhuFor Respondent : Ms.S.Anitha Government Advocate
O R D E RHeard the learned counsel appearing for the petitioner and thelearned Government Advocate appearing for the respondents.2. It has been stated that the petitioner had been appointed asa Head Mazdoor in the respondent Department, through the employment https://hcservices.ecourts.gov.in/hcservices/ exchange. At the time of the appointment of the petitioner there wereno adhoc rules for the post of Head Mazdoor. The petitioner hadpassed S.S.L.C with bifurcated engineering course in the year 1972,which is the essential qualification for the post of Work InspectorGrade-II, as per the special rules enacted by the Government, inG.O.M.s.No.461, Public Works Department, dated 15.3.1980.3. It has been further stated that the adhoc rules for the postof Head Mazdoor had been enacted, on 15.3.1980, with retrospectiveeffect, from 7.5.1966. The petitioner, on completion of 10 years ofservice, as a Head Mazdoor, had been promoted as Work InspectorGrade-II. Pursuant to the representations made by the petitioner andthe order passed by the Tamil Nadu Adminstrative Tribunal, inO.A.No.853 of 2000, the petitioner had been promoted as WorkInspector Grade-I from 16.3.1998 and the monetary benefits had beengranted to him by Proceedings No.919/2000/N.A., dated 13.3.2000.However, the impugned order, dated 18.4.2001, had been issued torecover the amounts paid to the petitioner, as salary and otherbenefits, based on audit objections raised by the office of the Accountant General. The excess amount said to have been paid wasordered to be recovered from the salary of the petitioner from themonth of April, 2001. The earlier order, dated 13.3.2000, had beencancelled stating that the designation of the petitioner as WorkInspector Grade-I was incorrect.
The main contentions of the learned counsel for thepetitioner are that the impugned order, dated 18.4.2001, had beenpassed without any notice having been issued to the petitioner andwithout giving him an opportunity to put forth his case. Even thoughthe petitioner was fully qualified for the post of Work InspectorGrade-I, the impugned order had been passed, based on the objectionsraised by the Accountant General. Further, proper reasons have notbeen given in the said impugned order. No recovery can be made fromthe salary of the petitioner, since such payments were made not basedon the misrepresentation or fraud committed by the petitioner.
Based on the reply filed, the learned counsel appearing onbehalf of the respondents had submitted that the impugned order, dated 18.4.2001, had been passed by the second respondent, based onthe audit objections raised by the Accountant General, stating thatthe petitioner was not qualified to be promoted to the post of WorkInspector Grade-I. Therefore, the excess salary paid to thepetitioner, in view of the promotion granted to him, had to berecovered from him.
The learned counsel appearing on behalf of the respondentshad not been in a position to show that a prior notice had beenissued to the petitioner before the passing of the impugned order, dated 18.4.2001. It has also not been shown that the petitioner hadbeen given an opportunity to put forth his case. Further, sufficientreasons have not been shown in the impugned order to justify theaction against the petitioner. https://hcservices.ecourts.gov.in/hcservices/
Further, the recovery of the excess amount said to have beenpaid to the petitioner cannot be made, as held by this Court in itsorder, dated 27.6.2008, made in W.P.No.16150 of 2006 and as held inthe following decisions:4.1) In Shyam Babu Verma V. Union of India ((1994) 2SCC 521), the Supreme Court had held that it is not justand proper to recover any excess amounts already paid tothe petitioner, since the petitioners have received thehigher scale of pay due to no fault of theirs. 4.2) The Supreme Court, in SAHIB RAM Vs. STATE OFHARYANA ((1995) Supp (1) SCC 18), had held that therecovery of excess payment given by the authoritiesconcerned, by wrong construction of the relevant orders, without any misrepresentation by the employee, cannot bemade. 4.3) The Supreme Court, in BIHAR STATE ELECTRICITYBOARD Vs. BIJAY BHADUR ((2000) 10 SCC 99), had held thatthe recovery of the increments given, not on account of anyrepresentation or misrepresentation, cannot be sustained, as it would not be in consonance with equity, goodconscience, justice and fairness.
4.4) In UNION OF INDIA Vs. REKHA MAJHI ((2000) 10 SCC659), the Supreme Court had refused to permit the recoveryof excess payment made, since the person against whom therecovery was to be made was the only breadwinner of thefamily and as she was, financially, not in a position topay back the excess dearness relief drawn. 4.5) In PURSHOTTAM LAL DAS Vs. STATE OF BIHAR ((2006)11 SCC 492) , the Supreme Court had held that the recoveryof the excess amounts paid to the employees could berecovered only in such cases where they have been foundguilty of producing forged certificates or theirappointments had been secured on non-permissible grounds.4.6) In the decision of the Supreme Court, in BABULALJAIN Vs. STATE OF M.P. ((2007) 6 SCC 180), it was held thatsince the excess payment had been made on misconception oflaw and not due to any mistake or misrepresentation on thepart of the appellant, the recovery of the excess amount, without issuing any show cause notice, is not justified.
4.7) In the decision of the Supreme Court, in State of Bihar and Ors Vs. Pandey Jagdishwar Prasad (2008(1) UJ 197(SC), it has been held that where due to confusion in dateof birth due to negligence and lapses on the part of theauthorities due to which a service holder worked beyond hisservice tenure and was paid for it, no deduction could bemade for that period from the retiral dues. " https://hcservices.ecourts.gov.in/hcservices/
4.8) In the decision of a Division Bench of this Courtin P.ARUMUGAM Vs. REGISTRAR, TAMIL UNIVERSITY ((2006) 3M.L.J.1025), it was held that when the employee was notresponsible for the wrong fixation, the excess payment madecannot be recovered, especially, after the retirement ofthe employee and when the recovery was sought for after 17years of service. 4.9) In D.PALAVESAMUTHU Vs. T.N. ADMINISTRATIVETRIBUNAL ((2006) (3) L.L.N.461), a Division Bench of this Court had held that when the fault of excess payment wascommitted by the Department and their officers and it wasnot due to the petitioner, the petitioner cannot bepenalised after the lapse of number of years, that tooafter his retirement. 4.10) In KANTHIMATHI, S.A. Vs. DIRECTOR OF SCHOOLEDUCATION, MADRAS ((2006) 1 M.L.J. 695), this Court hadheld that the recovery of excess amount paid cannot berecovered when it was not due to the fault of thepetitioner and when no opportunity had been given to herbefore the order of recovery was passed. Since the salarypaid to the petitioner was not on account of anymisrepresentation and when the order had been passedwithout giving any opportunity to the petitioner to putforth her case, the impugned order of recovery was quashed.
In such circumstances, this Court is of the considered viewthat the impugned order of the second respondent, dated 18.4.2001,cannot be sustained in the eye of law. Accordingly, the impugnedorder of the second respondent is set aside, in so far as it relatesto the recovery of the salary and other emoluments paid to thepetitioner.
However, it is open to the respondents to take appropriateaction concerning his promotion to the post of Work Inspector Grade-I, and with regard to the re-fixation of his salary and otheremoluments due to him, in accordance with law, after givingsufficient opportunity to the petitioner to put forth his case. Thewrit petition stands allowed with the above directions. No costs. Sd/- Asst. Registrar/true copy/ Sub Asst. Registrarcsh https://hcservices.ecourts.gov.in/hcservices/ To1. Superintending Engineer, Public Works Dept-WRO, Pennar Basin Circle, Thiruvannamalai. 2. Executive Engineer, Public Works Dept-WRO, Lower Pennar Basin Divn. Villupuram. 3. Asst. Executive Engineer, Public Works Dept-WRO, Lower Pennar Basin Sub-Divn. Thirukkovilur.+1 cc to Mr.T.Ayngaraprabhu, Advocate, SR.No.295772 cc To The Government Pleader, SR.26118 and 28997Writ Petition No.5027 of 2007KU {CO}TP/21.7.2009.
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