T.Rangarajan v. Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 09-07-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.49452 of 2006 (T)(O.A.No705 of 2001)T.Rangarajan.. Petitioner.Versus1.Engineer-in-Chief, W.R.O,Chief Engineer (General)Public Works Department,Chennai-5.2.The Executive Engineer,Nanganjiyar Basin Division, Palani.3.Asst. Executive Engineer,WRO, Public Works Department,Palani Sub-Division, Palani.4.The Principal AccountantGeneral (A&E),Tamil Nadu, Chennai-18... Respondents.Prayer: Original Application No.705 of 2001 filed before the TamilNadu Administrative Tribunal, on abolition, transferred to the fileof this Court and renumbered as Writ Petition No.49452 of 2006,seeking for a writ of Certiorarified Mandamus to call for the recordsrelating to 1) P15/2/R149-1224/99-2000/ADK, dated Nil. Signed on15.1.2000, 2) Proc.Lr.No.AD1/1 (587)/2000, dated Nil .02.200. signedon 24.2.2000 and 3) Proc.Lr.No.F3/2000, dated 9.3.2000 of the 4th, 2ndand 3rd respondents respectively, quash the same and issue directionsto the respondents to refund the amount of Rs.88,785/- to thepetitioner with interest. For Petitioner : Ms.R.Prasana DeviFor Respondents : Mr.V.Arun Additional Government PleaderO R D E RHeard the learned counsel appearing for the petitioner and thelearned Additional Government Pleader appearing for the respondents. https://hcservices.ecourts.gov.in/hcservices/

2. The brief facts of the case are as follows:The petitioner had been appointed as Maistry, Grade-I, on3.8.1963, and he had been promoted as Selection Grade Maistry, on1.12.1964. Thereafter, he had been appointed as Selection Grade WorkInspector, with effect from 24.11.1970, which is the date on which hewas absorbed into the State service. Later, by a Government of TamilNadu, Public Works Department, Memorandum, dated 29.1.1971, thedesignation of Selection Grade Maistry had been changed as SelectionGrade Work Inspector. By a Government Order No.142, Public WorksDepartment, dated 3.2.1973, the petitioner's pay had been fixed inthe cadre of Work Inspector Grade-II. Accordingly, the pay of thepetitioner had been reduced. Later, in the proceedings of the firstrespondent, dated 24.1.1981, and the memo, dated 12.2.1981,clarifications had been issued to restore the pay of those who hadbeen promoted by the Executive Engineer, in accordance with theprevalent procedures for their regularisation, upto 30.5.1973 and forthose whose nomenclature and their designations had been changed fromSelection Grade Work Inspector to Work Inspector Grade-II, betweenthe period from 24.11.1970 to 30.5.1973. 3. It has been further stated that since the petitioner had beenworking as Selection Grade Work Inspector, with effect from1.12.1964, his pay had been fixed on par with Work Inspector Grade-IIcadre, in accordance with G.O.Ms.No.142, Public Works Department,dated 3.2.1973. Based on the request made by the petitioner the payscale of the petitioner had been revised and he had been paid all theconsequential monetary benefits. However, by the impugned proceedingsof the respondents, the excess amounts said to have been paid to thepetitioner were ordered to be recovered. 4. The main contention of the learned counsel appearing for thepetitioner is that the respondents had passed the impugned orders,without having the power or jurisdiction to do so. The impugnedorders have been issued to recover the amounts already paid to thepetitioner, without issuing a prior notice to him and without givinghim an opportunity to put forth his case. The impugned orders havebeen issued, without proper application of mind and withoutconsidering the previous records relating to the matter. Further, theconsent letter said to have been given by the petitioner for therecovery of Rs.88,785/-, from the Death-cum-Retirement Gratuity, hasbeen obtained from him under coercion. The pay scales of thepetitioner had been refixed by the concerned authorities based on theGovernment Orders and the relevant regulations applicable to thecase. Hence, the amounts said to have been paid in excess is not dueto any misrepresentation or fraud on the part of the petitioner. Insuch circumstances, the impugned orders are liable to be set aside.5. Even though the claims made by the petitioner have beendenied in the reply affidavit filed on behalf of the respondents, it https://hcservices.ecourts.gov.in/hcservices/ has not been stated that the petitioner had been issued with priornotice before the impugned proceedings had been passed. It is not thecase of the respondents that the refixation of the pay scale of thepetitioner had been done due to the misrepresentation or fraud on thepart of the petitioner.6. Further, the recovery of the excess amounts said to have beenpaid to the petitioner cannot be made, as held by this Court in itsorder, dated 27.6.2008, made in W.P.No.16150 of 2006 and as held inthe following decisions:4.1) In Shyam Babu Verma V. Union of India ((1994) 2SCC 521), the Supreme Court had held that it is not justand proper to recover any excess amounts already paid tothe petitioner, since the petitioners have received thehigher scale of pay due to no fault of theirs. 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 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. 4.4) 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. 4.5) 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.4.6) 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/

4.7) In the decision of the Supreme Court, in State ofBihar and Ors Vs. Pandey Jagdishwar Prasad (2008(1) UJ 197(SC), it has been held that where due to confusion in dateof birth due to negligence and lapses on the part of theauthorities due to which a service holder worked beyond hisservice tenure and was paid for it, no deduction could bemade for that period from the retiral dues."4.8) 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. 4.9) 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. 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. 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. 7. In view of the submissions made by the learned counselappearing on behalf of the petitioner, and in view of the decisionscited above, the impugned orders are set aside, in so far as itrelates to the recovery of the amounts already paid to thepetitioner, as salary. However, it is open to the respondents toregularise the scale of pay of the petitioner, in accordance withlaw, after affording a reasonable opportunity to the petitioner, toput forth his case. Accordingly, the writ petition is allowed asnoted above. No costs. Sd/- Asst.Registrar/true copy/ Sub Asst.Registrarcsh https://hcservices.ecourts.gov.in/hcservices/ To1.The Engineer-in-Chief, W.R.O,Chief Engineer (General)Public Works Department,Chennai-5.2.The Executive Engineer,Nanganjiyar Basin Division, Palani.3.Asst. Executive Engineer,WRO, Public Works Department,Palani Sub-Division, Palani.4.The Principal AccountantGeneral (A&E),Tamil Nadu, Chennai-18.+1 cc to Mr.M.Ravi, Advocate, SR.No.302921 cc To The Government Pleader, SR.30262Writ Petition No.49452 of 2006(T)DM {CO}TP/27.7.2009.