S.Kaliappan v. NONE

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.06.2009 CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDRENWrit Petition No.48507 OF 2006 (T)O.A.No.658 of 20011. S.Kaliappan2. R.Periyakali3. A.Perumal4. T.Krishnan5. K.Kalaimani6. B.Balakrishnan7. S.K.Raju8. A.Paramasivam9. C.Krishnan10.A.Rajagopal11.M.Chinnathambi12.M.Vijayan13.S.Natarajan14.K.Sundaram15.N.Muthulingan16.C.Jayachandran17.P.Kumaresan18.K.S.Prabhu19.P.Perumal20.C.Palanisamy21.C.Subramaniam22.P.Vangili23.V.Santha Kumar24.M.Muthusamy25.P.Srirangan26.D.Radhakrishnan27.C.Parthiban28.K.Annamalai29.C.Govindasamy30.P.Kandhammal31.K.Palanisamy32.M.Perumal33.V.Madesh34.A.Jayaseelan35.S.R.Chandrahasan36.A.Marimuthu37.V.Manickam38.K.Rajagopal39.M.Thangavel https://hcservices.ecourts.gov.in/hcservices/

40.R.Narayanasamy41.G.Kannan42. N.Chinnakulandai.. Petitioners/Applicants vs. 1. The Secretary to Government Higher Education Department Chennai-92. The Director of Technical Education Guindy, Chennai-253. The Principal Government Engineering College Salem-636 011.. Respondents/Respondents Writ Petition filed under Article 226 of the Constitution of Indiapraying for a writ of Certiorarified Mandamus to call for the recordsin pursuant to the impugned order of recovery passed by the 3rdrespondent in proc.No.7409/C2/99-1 dated 26.9.2000 and quash the sameand so far as the petitioners are concerned and direct therespondents to pay the revised scales of pay as per G.O.Ms.No.739Finance Department dated 18.12.1996 till the implementation of thenext revised pay. For petitioners : Mr.R.Subburaj For respondents : Ms.S.Anitha Government AdvocateO R D E R Heard the learned counsels appearing for the parties concerned. 2. It is submitted by the learned counsel appearing for thepetitioners that the petitioners had been employed in various postsin the Government Engineering College, Salem. The pay scales of thepetitioners had been revised, based on the Government order, inG.O.Ms.No.739, Finance Department, dated 18.12.1996. However, thethird respondent had issued the impugned order seeking to recover theamounts paid as salary to the petitioners without issuing any noticeto them and without giving them an opportunity to putforth theircases. 3. No counter affidavit has been filed denying the statements madeby the learned counsel appearing for the petitioners. 4. The main contention of the learned counsel for thepetitioners is that no prior notice had been issued to the https://hcservices.ecourts.gov.in/hcservices/ petitioners before the impugned order had been passed. Further, therewas no misrepresentation or fraud committed by the petitioners, basedon which the refixation of the petitioners' scale of pay was done. 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. 6. The learned Government Advocate appearing for the respondentshad not refuted the contentions raised on behalf of the petitioners. 7. The following decisions, relating to the recovery of excessamounts paid to the employees, are in favour of the petitioners inthe present writ petition. 10.1) In PURSHOTTAM LAL DAS Vs. STATE OF BHIAR ((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. 10.2) The Supreme Court, in BIHAR STATE ELECTRICITYBOARD Vs. BIJAY BHADUR ((2000) 10 SCC 99) had held that therecovery 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. 10.3) In UNION OF INDIA Vs. REKHA MAJHI ((2000)10 SCC 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 a positionto pay back the excess dearness relief drawn. 10.4) The Supreme Court, in SAHIB RAM Vs. STATE OFHARYANA ((1995) Supp (1) SCC 18) had held that the recoveryof excess payment given by the authorities concerned, bywrong construction of the relevant orders, without anymisrepresentation by the employee, cannot be made. 10.5) 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. https://hcservices.ecourts.gov.in/hcservices/

10.6) In the decision of a Division Bench of thisCourt in P.ARUMUGAM Vs. REGISTRAR, TAMIL UNIVERSITY ((2006)3 M.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. 10.7) 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. 10.8) 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.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 excessamounts said to have been paid to the petitioners is not due to anymisrepresentation or fraud on the part of the petitioners. Further,no notice had been issued to the petitioners to put forth their casesbefore the impugned order of recovery had been passed. Thepetitioners cannot be held liable for the fault committed by theconcerned authorities, who were responsible for fixing the scale ofpay of the petitioners. 9. In such circumstances, the impugned orders issued by thethird respondent in proc.No.7409/C2/99-1, dated 26.9.2000, insofar asit seeks to recover the excess amounts paid to the petitioners, isliable to be set aside, as it has been passed without issuing thenecessary notice to the petitioners and without giving them anopportunity to put forth their cases. Further, it is not the case ofthe respondents that the excess amount had been granted to thepetitioners based on their misrepresentation or fraud. However, it isopen to the respondents to refix the scales of pay, in accordancewith the rules and the Government orders applicable to thepetitioners, after giving them an opportunity of being heard. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, the writ petition stands allowed to the extent notedabove. No costs. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar lanTo1. The Secretary to Government Higher Education Department Chennai-92. The Director of Technical Education Guindy, Chennai-253. The Principal Government Engineering College Salem-636 011+1 cc to Government Pleader,SR.26078+ 1 cc to Mr.S.M.Subramaniam,Advocate,SR.25500Writ Petition No.48507 OF 2006 (T)O.A.No.658 of 2001PUR(CO)EM/10.7.09