In Shyam Babu Verma v. Union of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 09-07-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.2792 of 2007(O.A.No.945 of 2001)M.Kandasamy.. Petitioner.Versus1.State of Tamil Nadu rep, by the Secretary to Govt.,Finance Dept., (CMPC),Chennai-9.2.The Director of Technical Education,Guindy, Chennai-25.3.The Principal,Government, Polytechnic, Krishnagiri... Respondents. Prayer: Original Application No.945 of 2001 filed before the TamilNadu Administrative Tribunal, on abolition, transferred to the fileof this Court and renumbered as Writ Petition No.2792 of 2007,seeking for a writ of Certiorari to call for the records on the fileof the third respondent in connection with the order passed by him inhis Proc.No.2729/B/2000, dated 22.12.2000, and quash the same. For Petitioner : Mr.R.SingaravelanFor Respondents : Mr.V.Arun Additional Government PleaderO R D E RHeard the learned counsel appearing for the petitioner and thelearned counsel appearing for the respondents.2. The brief facts of the case are as follows:The petitioner was working in the Government Polytechnic atKrishnagiri for more than 10 years, without any blemish. While so, anorder had been passed by the third respondent to recover certainexcess amounts paid to the petitioner, for the period from 1.6.1988to 31.3.1992. The excess amounts were to be recovered from the salaryof the petitioner, with effect from 31.1.2001. However, no details https://hcservices.ecourts.gov.in/hcservices/ have been given in the impugned order of the third respondent, dated22.12.2000. No notice had been given to the petitioner to show causeas to why the alleged excess amounts should not be recovered fromhim. The third respondent does not have the power to revise the payscale of the petitioner, as it is only the State Government that cando so. The excess amounts said to have been paid to the petitioner isnot due to his misrepresentation or fraud. Hence, the impugned orderof the third respondent, dated 22.12.2000, is liable to be set aside. 3. No reply affidavit has been filed on behalf of therespondents. Further, nothing has been shown on behalf of therespondents to refute the claims made by the petitioner.4. Further, the recovery of the excess amounts 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. https://hcservices.ecourts.gov.in/hcservices/

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 ofBihar 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."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 thisCourt 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.5. In view of the submissions made by the learned counselappearing on behalf of the petitioner, and in view of the decisionscited above, the impugned order of the third respondent, inProc.No.2729/B/2000, dated 22.12.2000, is set aside, in so far as itrelates to the recovery of the amounts already paid to thepetitioner, as salary. However, it is open to the respondents toregularise the scale of pay of the petitioner, in accordance withlaw, after affording a reasonable opportunity to the petitioner toput forth his case. Accordingly, the writ petition is allowed, as https://hcservices.ecourts.gov.in/hcservices/ noted above. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcshTo1. The Secretary to Govt.,State of Tamil Nadu, Finance Dept., (CMPC),Chennai-9.2.The Director of Technical Education,Guindy, Chennai-25.3.The Principal,Government, Polytechnic, Krishnagiri.1 cc To Mr.R.Singaravelan, Advocate, SR.300751 cc To The Government Pleader, SR.30227Writ Petition No.2792 of 2007kk(co)pmk.11.8.2009.