T.V. Sundararajan (deceased) v. The Joint Director of School, Education (Personnel)

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 27-06-2008CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.16150 of 2006(O.A.No.1932 of 1996)

T.V.Sundararajan (deceased)2.s.Jayalakshmi3.R.Anandhi4.S.Viji5.C.Latha.. Petitioners. Versus1.The Joint Director of School, Education (Personnel), Madras-6.

The District Elementary EducationalOfficer, D.P.I. Compound, College Road, Madras-6,3.The Assistant Elementary EducationalOffice, Karur-630 001,Dheeran Chinnamalai District... Respondents. (Petitioners 2 to 5 substituted as LRs of deceased petitioner as per the order, dated 25.06.2008, inW.P.M.P.NO.1349 of 2007 in W.P.No.16150 of 2006 by MJJ.)Prayer: This petition has been filed seeking for a writ of Certiorari, to call for the records relating to the order of theII Respondent, dated 28.12.1995, issued in Na.Ka.No.4749/A1/95 andto quash the same. The O.A.No.1932/1996 on the file of the TamilNadu Administrative Tribunal, Chennai has been transferred andrenumbered as WP.16150/2006.For Petitioner : Ms.DhanalakshmiFor Respondents : Mr.T.Sreenivasan Government Advocate https://hcservices.ecourts.gov.in/hcservices/

O R D E RHeard the learned counsel appearing for the petitioners andthe learned Additional Government Pleader appearing for therespondents.2. It is stated by the petitioners that in the year 1963 theoriginal petitioner, T.V.Sundara Rajan was appointed as a LowerDivision Clerk in the respondent Department. He was promoted as an Assistant in the year 1982. As such, the early increment wassanctioned and paid to the petitioner. However, when thepetitioner, T.V.Sundara Rajan, had submitted a representation inthe year, 1994, for being promoted to the post of Superintendent, by the proceedings of the Joint Director, a note had been issuedstating that the petitioner, T.V.Sundara Rajan, ought to havepassed the District Office Manual Test to get the increments. Consequently, the impugned order was passed by the secondrespondent in Na.Ka.No.4749/A1/95, dated 28.12.1995, orderingrecovery of increments already paid to the petitioner, from 1.4.84to 1.4.93.

It is stated by the learned counsel for the petitionersthat the increments were sanctioned and paid to the petitionerT.V.sundara Rajan by the respondents and there was nomisrepresentation on the part of the petitioner T.V.Sundararajan, based on which increments were paid. Further, no notice had beenissued to the petitioner T.V.Sundararajan, before the impugnedorder of recovery was passed.

In the reply affidavit filed on behalf of the respondents, it has been stated that the petitioner, T.V.Sundara Rajan, hadjoined duty as an Assistant from 1.6.82 and he should have passedthe District Office Manual Test on or before 31.5.84 to beeligible to draw increments in the category of Assistants. However, the annual increments were sanctioned and paid to him, erroneously.

The main contention of the learned counsel for thepetitioner is that no prior notice had been issued to thepetitioner T.V.Sundararajan, before the impugned order ofrecovery, dated 28.12.95, had been passed by the secondrespondent. Further, there was no misrepresentation or fraudcommitted by the petitioner T.V.Sundararajan, based on which theannual increments were sanctioned and paid to him. https://hcservices.ecourts.gov.in/hcservices/

The learned counsel has also submitted that in similarcircumstances, this Court had set aside the orders issued by theconcerned authorities attempting to recover the amounts paid assalary, increments and other allowances. The learned counsel forthe petitioners had relied on the decision of this Court, dated26.3.2008, made in W.P.No.36514 of 2007.

The learned counsel appearing for the respondents had notrefuted the contentions raised on behalf of the petitioners.

The following decisions, relating to the recovery ofexcess amounts paid to the employees, are in favour of thepetitioners in the present writ petition. 8.1) In PURSHOTTAM LAL DAS Vs. STATE OF BIHAR((2006) 11 SCC 492) , the Supreme Court had held thatthe recovery of the excess amounts paid to the employeescould be recovered only in such cases where they havebeen found guilty of producing forged certificates ortheir appointments had been secured on non-permissiblegrounds. 8.2) 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 ofany representation or misrepresentation, cannot besustained, as it would not be in consonance with equity, good conscience, justice and fairness. 8.3) In UNION OF INDIA Vs. REKHA MAJHI ((2000) 10SCC 659), the Supreme Court had refused to permit therecovery of excess payment made, since the personagainst whom the recovery was to be made was the onlybreadwinner of the family and as she was, financially, not in a position to pay back the excess dearness reliefdrawn. 8.4) The Supreme Court, in SAHIB RAM Vs.STATE OF HARYANA ((1995) Supp (1) SCC 18), had held thatthe recovery of excess payment given by the authoritiesconcerned, by wrong construction of the relevant orders, without any misrepresentation by the employee, cannot bemade. 8.5) In the decision of the Supreme Court, inBABULAL JAIN Vs. STATE OF M.P. ((2007) 6 SCC 180), itwas held that since the excess payment had been made onmisconception of law and not due to any mistake ormisrepresentation on the part of the appellant, therecovery of the excess amount, without issuing any showcause notice, is not justified. https://hcservices.ecourts.gov.in/hcservices/

8.6) In the decision of a Division Bench of this Court in P.ARUMUGAM Vs. REGISTRAR, TAMIL UNIVERSITY((2006) 3 M.L.J.1025), it was held that when theemployee was not responsible for the wrong fixation, theexcess payment made cannot be recovered, especially, after the retirement of the employee and when therecovery was sought for after 17 years of service. 8.7) In D.PALAVESAMUTHU Vs. T.N. ADMINISTRATIVETRIBUNAL ((2006) (3) L.L.N.461), a Division Bench ofthis Court had held that when the fault of excesspayment was committed by the Department and theirofficers and it was not due to the petitioner, thepetitioner cannot be penalised after the lapse of numberof years, that too after his retirement. 8.8) 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 thesalary paid 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 wasquashed.

Based on the submissions made by the learned counselsappearing on either side and on a perusal of the recordsavailable, it is seen that the petitioner T.V.Sundararajan, haddied on 11.7.2006, and by an order passed by this Court inW.P.M.P.No.1349 of 2007, dated 25.6.2008, the legal heirs of thepetitioner, T.V.Sundara Rajan, had been brought on record. Further, it is seen that the increments have been paid to thepetitioner, T.V.Sundara Rajan, by the respondents and it was notbased on any misrepresentation on his part. Further, no notice hadbeen issued by the respondents before the impugned order ofrecovery was passed. The petitioner T.V.Sundararajan, cannot beheld liable for the fault committed by the concerned authoritieswho were responsible for granting the annual increments to him. Anorder of interim stay of the impugned order has been granted bythe Tamil Nadu Administrative Tribunal and therefore, no recovery, has been effected till date.