IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.04.2009 CORAM; THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.33068 OF 2006 S.Srinivasan ..Petitioner vs 1.The Director of Elementary Education College Road Nungambakkam Chennai 6 2.The District Elementary Education Officer Dharmapuri 636 702, Dharmapuri District 3.The Additional Assistant Elementary Educationl Officer, Thally Denkanikotta (Taluk) Dharmapuri 635 118 ..Respondents This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.9658/97 from the file of Tamil Nadu Administrative Tribunal with the prayer to call for the entire records pertaining the impugned order Reduction of pay and recovery order passed by the 3rd respondent in his proceeding Na.Ka.No.4109/A2/97 dt.7.4.97 and set aside the same and further direct the respondents to award one notional increment for his promotion as B.T.Grade Middle School H.M. with all the consequential benefits. for petitioner : Mr.K.Thennan for respondents : Mr.P.Gurunathan,G.A. ORDER The petitioner was serving as a B.T.Headmaster in the Panchayat Union Middle School, Marupally Post, Denkanikottai Taluk, Dharmapuri District. He filed O.A.No.9658/1997 seeking to set aside the order dated 7.4.97 and also the consequential recovery made from his salary. Even at the time of filing of the Original Application the petitioner was 57 years old and would have retired https://hcservices.ecourts.gov.in/hcservices/ during the year 1998. The ground taken in attacking the recovery order was that no notice was given before effecting the recovery. The Tribunal granted an interim stay of the impugned order by its order dated 28.11.97 which was directed to be continued until further orders. In view of the abolition of the Tribunal the matter stood transferred to this Court and renumbered as W.P.No.33068/2006. The respondents have so far not filed any counter affidavit justifying the recovery. Except by stating that excess amount of Rs.44,212/- was to be paid by the petitioner, they have not justified the recovery nor denied the allegation about the non-issuance of the notice. The Supreme Court had held though not a person may be entitled to get certain amounts paid legally but on equity jurisdiction the Court can grant relief if the fixation was not done due to any misrepresentation. In the judgment SYED ABDUL QADIR AND OTHERS Vs. STATE OF BIHAR AND OTHERS reported in 2009 (3) SCC 475 in paragraphs 58 and 59 the Supreme Court has ordered as follows: "58.The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M.Bhaskar, V.Gangaram v. Director, Col.B.J.Akkara (Retd.) v. Govt. of India, Purshottam Lal Das v. State of Bihar, Punjab National Bank v. Manjeet Singh and Bihar SEB v. Bijay Bhadur. 59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter- affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the https://hcservices.ecourts.gov.in/hcservices/ officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." In the light of the same, the Writ Petition stands allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sal To 1.The Director of Elementary Education College Road Nungambakkam, Chennai 6 2.The District Elementary Education Officer Dharmapuri 636 702, Dharmapuri District 3.The Additional Assistant Elementary Educationl Officer, Thally Denkanikotta (Taluk) Dharmapuri 635 118 1 cc to Government Pleader, SR. 16437 W.P.NO.33068/2006 SP C(O) kk 30/4 https://hcservices.ecourts.gov.in/hcservices/