E.Velammal v. Director of School Education,Madras-6 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 24-06-2008CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.27002 of 2006(T)(O.A.No.7210 of 1996)E.Velammal.. Petitioner.Versus1.Director of School Education,Madras-6.2.District Educational Officer,Seranmahadevi, Tirunelveli Kattabomman District.3.Headmaster,Government Higher Secondary School,Panagudi, Tirunelveli Kattabomman District... Respondents.Prayer: Upon Transfer, O.A has been numbered as Writ Petition andthis petition has been filed seeking for a writ of Certiorari, tocall for the records pertaining to the order passed by the 2ndrespondent in Na.Ka.No.15171/A5/96, dated 29.8.96, and theconsequential order of recovery passed by the 3rd respondent inNa.Ka.No.109/96, dated 11.9.96, and set aside the same. For Petitioner : Mr.S.ManiFor Respondents : Mr.T.Sreenivasan Government Advocate.O R D E RHeard the learned counsel appearing on behalf of the petitionerand the learned Additional Government Pleader appearing on behalf ofthe respondents.2. It is stated by the petitioner that she was appointed as aJunior Assistant, on 28.6.1981. She had appeared for the SpecialQualifying Examination and the results were published in the month of https://hcservices.ecourts.gov.in/hcservices/ December, 1981. By an order, dated 20.2.1982, the petitioner had beenappointed as a regular candidate, from 28.6.1981. Her probation wasalso declared, on 31.12.1984 and her services were regularised, witheffect from 28.6.1981. It has also been stated that the cancellationof the probation by the impugned order of the second respondent,dated 29.8.96, and the consequential order of recovery, dated11.9.96, issued by the third respondent are arbitrary, illegal andvoid. 3. The petitioner has also stated that her probation had beendeclared, on 27.6.83, based on which annual increments had been givento her. However, by the impugned order of the third respondent, theincrements granted to the petitioner are sought to be recovered. Ithas also been submitted that no notice had been given to thepetitioner before the order of cancellation of probation has beenpassed. Further, when such an order has been passed after twelveyears after the declaration of probation, the increments granted tothe petitioner cannot be recovered in accordance with the orderpassed by the third respondent, on 11.9.96, since no opportunity wasgiven to the petitioner before passing the order, especially, whenthe increments were not given to the petitioner based on hermisrepresentation. 4. The main contention of the learned counsel for the petitioneris that no prior notice had been issued to the petitioner before theimpugned order of recovery, dated 11.9.96, had been passed by thethird respondent. Further, there was no misrepresentation or fraudcommitted by the petitioner, based on which the increments were givento the petitioner.5. 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 for thepetitioner had relied on the decision of this Court, dated 26.3.2008,made in W.P.No.36514 of 2007.6. The learned counsel appearing for the respondents had notrefuted the contentions raised on behalf of the petitioner. 7. The following decisions, relating to the recovery of excessamounts paid to the employees, are in favour of the petitioner in thepresent writ petition. 7.1) 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/

7.2) 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 of anyrepresentation or misrepresentation, cannot be sustained,as it would not be in consonance with equity, goodconscience, justice and fairness. 7.3) 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. 7.4) 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. 7.5) 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. 7.6) 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. 7.7) 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. 7.8) 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 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. https://hcservices.ecourts.gov.in/hcservices/

8. In view of the submissions made by the learned counselsappearing on behalf of the parties concerned and in view of thedecisions rendered by the Courts of law and on a perusal of therecords available before this Court, it is clear that the excessamount said to have been paid to the petitioner is not due to anymisrepresentation or fraud on the part of the petitioner. Further, nonotice had been issued to the petitioner to put forth her case beforethe impugned order of recovery has been passed by the thirdrespondent, on 11.9.96. The petitioner cannot be held liable for thefault committed by the concerned authorities who were responsible forgranting the increments to the petitioner. 9. In such circumstances, the impugned order of the thirdrespondent, dated 11.9.96, made in Na.Ka.No.109/96, seeking torecover the increments paid to the petitioner is liable to be setaside, as it has been passed without issuing the necessary notice tothe petitioner and without giving an opportunity to put forth hercase. Further, it is not the case of the respondents that theincrements had been granted to the petitioner based on hermisrepresentation or fraud. Therefore, the impugned order of thethird respondent, dated 11.9.96, is set aside. 10. However, with regard to the impugned order, dated 29.8.96,passed by the second respondent, in Na.Ka.No.15171/A5/96, thepetitioner is permitted to make a representation to the secondrespondent to re-consider the said impugned order, after giving anopportunity to the petitioner to put forth her case, within a periodof four weeks from today and on such representation being made by thepetitioner, the second respondent is directed to pass appropriateorders thereon, on merits and in accordance with law, within a periodof twelve weeks thereafter. 11. In view of the order passed by this Court, setting aside theimpugned order of recovery, dated 11.9.96, made in Na.Ka.No.109/96,passed by the third respondent, the withheld benefits due to thepetitioner are to be disbursed, within a period of twelve weeks fromthe date of receipt of a copy of this order. Accordingly, the writ petition is partly allowed, to theextent noted above. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ cshTo1.The Director of School Education,Madras-6.2.The District Educational Officer,Seranmahadevi, Tirunelveli Kattabomman District.3.The Headmaster,Government Higher Secondary School,Panagudi, Tirunelveli Kattabomman District.+ 1 CC To Mr.S.Mani, Advocate SR NO.32364Writ Petition No.27002 of 2006DM(CO)SRA(27/08/2008)