THE HONOURABLE MR v. The Secretary to Government

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.06.2009CORAM:THE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.37470 of 2006K.Govindhan ..PetitionerVs.1. The Secretary to Government, Municipal Administration and Water Supply Department, Fort St. George, Chennai-600 009.2. The Director, Ullatchi Nidhi Thanikkai Thurai, 4th Floor, Kuralagam, Chennai-600 108.3. The Commissioner, Ambattur Municipality, Chennai-600 053. ..RespondentsThis writ petition has been preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the entire records relating tothe impugned order in Na.Ka.No.7471/96 A10, dated 21.7.1997 of thethird respondent and to quash the same as null and void andconsequently, to direct the respondents to pay entire amount withinterest from the date when it is fallen due. For Petitioner : Mr.S.SeshachalamFor Respondents : Mr.P.Gurunathan, GA for RR1 and 2 Mr.S.Thangaraj for R3ORDERThe petitioner has filed O.A.No.1334 of 1998, seeking tochallenge the order of the third respondent, dated 21.7.1997. In viewof the abolition of the Tribunal, the matter stood transferred tothis court and was renumbered as W.P.No.37470 of 2006. On behalf ofthe second respondent, a reply affidavit, dated 16.4.98 was filed. https://hcservices.ecourts.gov.in/hcservices/ The first respondent has filed a so-called adoption reply affidavit,adopting the reply affidavit allegedly filed by the third respondent,by its affidavit, dated 6.2.99. But, so far no such affidavit hasbeen filed by the third respondent. 2.It is seen from the records that the petitioner was working asa Road worker in the third respondent Municipality. He got retired on30.06.96 on reaching the age of superannuation, which was fixed as 60years. However, it is claimed that by G.O.Ms.No.263, MA&WSDepartment, dated 6.10.94, the age of superannuation for the NMRWorkers, working in Municipalities was fixed as 58 years and not 60years, as claimed by the workman. If this G.O., which came intoeffect was implemented, the petitioner had reached the age ofsuperannuation, i.e. 58 years on 30.06.94. But, however, thepetitioner was allowed to continue in service and he got retired onlyon 30.06.96. 3.Thereafter, an objection was raised by the secondrespondent, stating that the continuance of service by the petitionerupto 30.6.96 was improper and the period from 6.10.94 till 30.06.96was to be calculated as re-employment and the orders should be passedaccordingly. The third respondent consequently issued the impugnedproceedings, dated 21.7.97, stating that a sum of Rs.23,547/- beingthe excess salary and medical reimbursement, pongal bonus, earnedleave, surrender leave payment was to be recovered from him. 4.The Tribunal, by its order dated 23.4.98, granted an interimstay of recovery on the ground that no notice was given to him. Thesaid interim order was also directed to be continued until furtherorders. With reference to this allegation, the reply affidavit issilent. In justification of the recovery, in para 8 of the replyfiled by the second respondent, it has been averred as follows:"8.It is submitted that the second Respondent hasfollowed the above Government instructions scrupulouslywhile verifying the pension proposals of the petitionerreceived from the third Respondent and at once pointed outthat the petitioner has been allowed to continue hisservice upto 60 years instead of 58 years by the thirdRespondent and thereby the petitioner has been allowedextra 2 years of service from 7.10.94 to 30.6.96 which iscontrary to the Government orders as above. The secondRespondent has also directed the third Respondent totreat the period of extra 2 years from 6.10.94 as a periodof re-employment and take necessary action thereof. ..."5.The Supreme Court in Syed Abdul Qadir and others Vs. State ofBihar and others reported in (2009) 3 SCC 475 has held that even incase of wrong fixation of pay, the court can exercise equityjurisdiction and nullify recoveries being made. Therefore, it is https://hcservices.ecourts.gov.in/hcservices/ necessary to refer to the following paragraphs 57 to 59 found in thesaid judgment, which are as follows:"57.This Court, in a catena of decisions, has grantedrelief against recovery of excess payment ofemoluments/allowances if (a) the excess amount was notpaid on account of any misrepresentation or fraud on thepart of the employee, and (b) if such excess payment wasmade by the employer by applying a wrong principle forcalculating the pay/allowance or on the basis of aparticular interpretation of rule/order, which issubsequently found to be erroneous.58.The relief against recovery is granted by courtsnot because of any right in the employees, but in equity,exercising judicial discretion to relieve the employeesfrom the hardship that will be caused if recovery isordered. But, if in a given case, it is proved that theemployee had knowledge that the payment received was inexcess of what was due or wrongly paid, or in cases wherethe error is detected or corrected within a short time ofwrong payment, the matter being in the realm of judicialdiscretion, courts may, on the facts and circumstances ofany particular case, order for recovery of the amount paidin excess. See Sahib Ram v. State of Haryana, Shyam BabuVerma V. Union of India, Union of India v. M.Bhaskar,V.Gangaram v. Director, Col.B.J.Akkara (Retd.) v. Govt. ofIndia, Purshottam Lal Das V. State of Bihar, PunjabNational Bank vs. Manjeet Singh and Bihar SEB v. BijayBhadur.59.Undoubtedly, the excess amount that has been paidto the appellant teachers was not because of anymisrepresentation or fraud on their part and theappellants also had no knowledge that the amount that wasbeing paid to them was more than what they were entitledto. It would not be out of place to mention here that theFinance Department had, in its counter-affidavit, admittedthat it was a bona fide mistake on their part. The excesspayment made was the result of wrong interpretation of theRule that was applicable to them, for which the appellantscannot be held responsible. Rather, the whole confusionwas because of inaction, negligence and carelessness ofthe officials concerned of the Government of Bihar.Learned counsel appearing on behalf of the appellantteachers submitted that majority of the beneficiaries haveeither retired or are on the verge of it. Keeping in viewthe peculiar facts and circumstances of the case at handand to avoid any hardship to the appellant teachers, we https://hcservices.ecourts.gov.in/hcservices/ are of the view that no recovery of the amount that hasbeen paid in excess to the appellant teachers should bemade."6.In the present case, the petitioner never made anymisrepresentation for continuance of service. It was the thirdrespondent, which had retired the petitioner from service on reaching60 years of age. During the relevant period, the petitioner hadworked and earned his wages. Therefore, the question of making anyalleged excess payment towards wages and other allowances did notarise. The ratio laid down by the Supreme Court would squarely applyto the case of the petitioner. 7.In the light of the above, the writ petition stands allowed.The impugned order insofar as making a recovery for a sum ofRs.23,547/- is hereby set aside. If the amounts had already recoveredfrom the terminal benefits of the petitioner, the same shall be paidto the petitioner within 12 weeks from the date of receipt of thecopy of the order together with 6 % per annum interest from the dateof deduction till the date of the actual payment. However, there willbe no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar.vvkTo1. The Secretary to Government, Municipal Administration and Water Supply Department, Fort St. George, Chennai-600 009.2. The Director, Ullatchi Nidhi Thanikkai Thurai, 4th Floor, Kuralagam, Chennai-600 108.3. The Commissioner, Ambattur Municipality, Chennai-600 053. W.P.NO.37470 of 2006GV (CO)GSK 10.06.2009.