S. Jacqueline Suseela v. The Director of Technical Education, Guindy, Chennai-25

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 07-07-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.48338 of 2006(O.A.No.892 of 2001)

S.Jacqueline Suseela2.S.Prakasam(Work Shop Instructiors, Govt., Polytechnic, Trichy-22)

A.Ambigapathy4.M.Krishnan5.S.Ramasamy6.N.Thangaraj(Lab Assistants, Alagappa Polytechnic, Karaidudi-4)7.S.Krishnan8.G.Subbaraman9.K.Balaiyan10.G.Sabarathinam11.J.Muller(Working as Skilled AssistantsAlagappa Polytechnic, Karaikudi-4) .. Petitioners. Versus1.The Director of Technical Education, Guindy, Chennai-25.2.The Principal, Govt., Alagappa Polytechnic, Karaikudi-630 004.3.The Principal, Govt., Polytechnic, Trichy. .. Respondents. Prayer: Original Application No.892 of 2001 filed before the TamilNadu Administrative Tribunal, on abolition, transferred to the fileof this Court and renumbered as Writ Petition No.48338 of 2006,seeking for a writ of Certiorari to call for the records on thefile of the 2nd respondent in connection with the order passed byhim in his Proc. Memo No.1714/A2/2000, dated 12.1.2001,and quash thesame in so far as the petitioner is concerned. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr.R.SingaravelanFor Respondents : Mr.V.Arun Additional Government PleaderO R D E RHeard the learned counsel appearing for the petitioners andthe learned Additional Government Pleader appearing for therespondents.2. This writ petition has been filed to call for therecords relating to the order of the second respondent, dated12.1.2001, in so far as it relates to the petitioners and to quashthe same.3. It has been stated that the petitioners have beenworking in the Government Polytechnic, Trichy, in various posts. While so, an order had been passed by the second respondent for therecovery of certain amounts alleged to have been paid to them, inexcess, for the period from 1.6.1988 to 31.3.1992. The recovery wassought to be made from the salaries of the petitioners, with effectfrom 31.1.2001.

The main contention of the learned counsel for thepetitioners is that no proper reasons had been given as to how theamounts paid to the petitioners were in excess, for the period from1.6.1988 to 31.3.1992. No opportunity had been given to thepetitioners before the impugned order had been passed. Sincerevision of the pay scales had been done by the Government of Tamilnadu, any revision in the pay scales of the petitioners couldbe done only by the State Government, after giving prior notice tothe petitioners. In such circumstances, the impugned order of thesecond respondent, dated 12.1.2001, in Memo No.1714/A2/2000, isdevoid of merits and therefore, it is liable to be set aside.

No reply affidavit has been filed on behalf of therespondents. The learned counsel appearing on behalf of therespondents has not been in a position to justify the impugnedorder by placing the relevant records before this Court. He has notbeen in a position to show as to how the impugned order of thesecond respondent, dated 12.1.2001, is sustainable in the eye oflaw. Further, it has not been shown that prior notice had beenissued to the petitioners before the passing of the impugned order.6. Further, the recovery of the excess amounts said to havebeen paid to the petitioners cannot be made, as held by this Courtin its order, dated 27.6.2008, made in W.P.No.16150 of 2006 and asheld in the following decisions: https://hcservices.ecourts.gov.in/hcservices/

4.1) In Shyam Babu Verma V. Union of India((1994) 2 SCC 521), the Supreme Court had held that it isnot just and proper to recover any excess amounts alreadypaid to the petitioner, since the petitioners havereceived the higher scale of pay due to no fault oftheirs. 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 STATEELECTRICITY BOARD Vs. BIJAY BHADUR ((2000) 10 SCC 99),had held that the recovery of the increments given, noton account of any representation or misrepresentation, cannot be sustained, as it would not be in consonancewith equity, good conscience, justice and fairness. 4.4) In UNION OF INDIA Vs. REKHA MAJHI ((2000) 10SCC 659), the Supreme Court had refused to permit therecovery of excess payment made, since the person againstwhom the recovery was to be made was the only breadwinnerof the family and as she was, financially, not in aposition to pay 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 therecovery 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.4.6) In the decision of the Supreme Court, inBABULAL JAIN Vs. STATE OF M.P. ((2007) 6 SCC 180), it washeld 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. 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 toconfusion in date of birth due to negligence and lapseson the part of the authorities due to which a serviceholder worked beyond his service tenure and was paid forit, no deduction could be made for that period from theretiral dues.

"4.8) 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 the employee https://hcservices.ecourts.gov.in/hcservices/ was not responsible for the wrong fixation, the excesspayment made cannot be recovered, especially, after theretirement of the employee and when the recovery wassought for after 17 years 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.

The Principal, Govt., Alagappa Polytechnic, Karaikudi-630 004.3.The Principal, Govt., Polytechnic, Trichy.1 cc To The Government Pleader,29633 SR.1 cc To Mr.R.Singaravelan, Advocate, SR.29268Writ Petition No.48338 of 2006mrd(co)pmk.31.7.2009