IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.09.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.9364 to 9367, 20592, 20593, 21698 and 21699 of 2011 and M.P.Nos.1,1,1,1,1,1,1 and 1 of 2011 A.Anbuchelvan .. Petitioner in W.P.No.9364 of 2011 V.Narasimman .. Petitioner in W.P.No.9365 of 2011 S.Manickkam .. Petitioner in W.P.No.9366 of 2011 A.Jude .. Petitioner in W.P.No.9367 of 2011 S.Sankar .. Petitioner in W.P.No.20592 of 2011 G.Piramanayagam .. Petitioner in W.P.No.20593 of 2011 K.Subramanian .. Petitioner in W.P.No.21698 of 2011 A.Natarajan .. Petitioner in W.P.No.21699 of 2011 Vs. The Deputy Chief Manager (Personnel) TPS-II, O/o the Chief General Manager, Thermal Power Station-II & Extension, Neyveli Lignite Corporation Ltd., Neyveli. .. Respondent in all writ petitions All these writ petitions are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records on the file of the respondent Corporation made in AC/TPS-II U.O.No.CGM/TPS-II U.O.No.TPS-II/P & A/EE-6/7047/37064/2010 dated 20.12.2010, proceedings No.M-II/P&A/EE-4/5401/93/2011, dated 23.11.2011, letter No.P&A/TPS-I EXPN/7126/2011, dated 15.3.2011, No.AC/TPS-II https://hcservices.ecourts.gov.in/hcservices/ U.O.No.CGM/TPS-II U.O.No.TPS-II/P&A/EE-6/7047/37064/2010, dated 20.12.2010 and AC/TPS-II U.O.CGM/TPS-II/U.O.No.TPS-II/HR/EB(E)- 6/7047/28966/2011 dated 13.9.2011, quash the same and consequently direct the respondent to continue to pay the additional increment which has been granted with effect from 1.2.1993, 1.2.1995, 1.2.1995, 1.2.1994, 1992, 1993, 1.2.1994 and 1.2.1994 respectively. For Petitioners : Ms.Selvi George (in all writ petitions) For Respondent : Mr.N.A.K.Sarma (in all writ petitions) COMMON ORDER In all these eight writ petitions, the challenge is to the various orders issued by the respondent Neyveli Lignite Corporation (NLC) and after setting aside the same, seek for continuous payment of additional increment which was granted to them with effect from 1992, 1993, 1994 and 1995 as the case may be. 2.It is seen from the impugned order that the petitioners while they were working in the NLC, they were having qualification of Diploma in Engineering. Subsequently, through part time studies, they had acquired B.E. qualification or AMIE Part A and B examinations. It was informed that such acquisition of higher qualification will result in two advance increments. Therefore, the petitioners were given additional increment for possessing higher qualification and they were getting such increments. By communication, dated 21.10.2009, the petitioners were informed that if professional qualification was not obtained within one year from the date of issue of the order, the recovery of additional increment already sanctioned will be effected. The petitioners were also informed that they did not produce relevant records for having passed Section-B of AMIE / Part III of AMII (Chemical) even after lapse of one year. Hence the Corporate Public and Administration had reminded to take action against them. It is at this stage, the petitioners filed writ petitions in W.P.Nos.9364 to 9367 of 2011 challenging the said communication and had obtained stay of recovery. Thereafter, by a further proceedings, dated 13.9.2011, it was found that 18 employes did not pass AMIE Section B within the stipulated time. Therefore, the basic pay of those employees was reduced by one increment with effect from June, 2011. In the meanwhile, two employees M/s.A.Jude and A.Anbuselvan have obtained stay order (in W.P.Nos.9367 and 9364 of 2011). Therefore, the Accounts Office was directed to effect recovery of total amount in installments. It is at this stage, the other writ petitions came to be filed. 3.The contention raised by the petitioners was that the policy of granting two additional increments was only for employees who acquired higher qualification. Since they had completed the examinations, they were given one increment. They have also paid taxes on the said increment. It is admitted that they have not passed the second examination. It is never stipulated that increments will be given only if they pass two examinations. https://hcservices.ecourts.gov.in/hcservices/ Even for undergoing the course, they have spent considerable amount and that if any recovery is made at this stage, it will cause great hardship. It is in this premise, notice was directed to be issued to the Standing Counsel for the NLC. 4.Mr.N.A.K.Sarma, learned Standing Counsel for the NLC appeared and had stated that it is a case where payments were made without the petitioners being eligible for the said amount. No one can claim advance increment as a matter of right. It is based upon the conditions attached to the said payment. Inasmuch as the petitioners have not complied with the conditions, there is no impediment for the NLC to recover the amount. Already on finding that they have not passed the full examinations, a further time to complete the examination was also given. Therefore, the NLC has given a long rope in completing the course. Even thereafter they have not passed the same and they would have to blame themselves. Therefore, this is not a case of recovery being made without due notice. On the contrary, even after a further time limit was given, the petitioners have not passed the test. Therefore, they are ineligible to get the amount which was specifically sanctioned only on their completing the course. Without completing the course, it is unthinkable that for completing a part of the course, one increment should be given. The very idea of the rewarding a person on his getting qualified with higher educational degrees will be lost if they are allowed to cross only half way through the course and not getting any degree/diploma. 5.The Supreme Court has held that such deduction is permissible vide its judgment in in Cooperative Societies v. Israil Khan reported in (2010) 1 SCC 440 and in paragraphs 6,7,9 and 10 the Supreme Court held as follows: "6.The appellants contended that the resolutions of the Managing Committees directing payment of salary by extending the benefit of regular pay scales was in violation of the Rules and that such resolutions were a result of the collusion between the employees concerned and the respective Managing Committees and therefore the employees are liable to refund the same. They further contended that the High Court, having held that the employees were not entitled to the said benefit, committed an error in refusing to direct refund thereof. On the other hand, the respondents contended that having regard to the decisions of this Court in Sahib Ram v. State of Haryana1 and Shyam Babu Verma v. Union of India2, any excess payment to employees should not be recovered from them. 7.There is no “principle” that any excess payment to employees should not be recovered back by the employer. This Court, in certain cases has merely used its judicial discretion to refuse recovery of excess wrong payments of emoluments/allowances from employees on the ground of hardship, where the following conditions were fulfilled: https://hcservices.ecourts.gov.in/hcservices/ “(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. (b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.”* .... 9.What is important is, recovery of excess payments from employees is refused only where the excess payment is made by the employer by applying a wrong method or principle for calculating the pay/allowance, or on a particular interpretation of the applicable rules which is subsequently found to be erroneous. But where the excess payment is made as a result of any misrepresentation, fraud or collusion, courts will not use their discretion to deny the right to recover the excess payment. 10.In these cases, the Rules specifically provided that the employees should be paid a consolidated salary. Therefore without amendment of the Rules, the Managing Committees could not have passed a resolution for giving the benefit of regular pay scales that too with retrospective effect to the employees. Further, the Societies did not have the funds to make such payments and illegally diverted the funds made available for disbursal of loans to farmers, for the purpose of making such excess payment to the employees. When the resolution extending such benefit was passed and the amounts earmarked for loans for farmers were diverted for making payment to the employees, the Managing Committees as well as the employees were aware that the resolution and consequential payment was contrary to the Rules. There was no question of any wrong calculation or erroneous understanding of the legal position. Most of the employees who received similar relief have refunded or have agreed to refund the excess payment. Making any exception in the case of the respondents would also lead to discrimination." (Emphasis added) 6.Hence the petitioners cannot make out any case in interfering with the withdrawal of the increment sanctioned erroneously and refixing the pay suitably. 7.However, Ms.Selvi George, the counsel for the petitioners submitted that since they have not made any misrepresentation and that increments were paid by the administration and if at this stage, the amounts are recovered, they will be put to grave hardship. This contention is well founded. https://hcservices.ecourts.gov.in/hcservices/ 8.In this context, it is necessary to refer to a judgment of the Supreme Court in Syed Abdul Qadir v. State of Bihar reported in (2009) 3 SCC 475. The following passages found in paragraphs 57 and 58 may be usefully reproduced below: "57.This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 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 Haryana1, Shyam Babu Verma v. Union of India2, Union of India v. M. Bhaskar3, V. Gangaram v. Director4, Col. B.J. Akkara (Retd.) v. Govt. of India5, Purshottam Lal Das v. State of Bihar6, Punjab National Bank v. Manjeet Singh7 and Bihar SEB v. Bijay Bhadur8." 9.In view of the above, while this court will not interfere with the withdrawal of the advance increments and the consequent refixation of pay, but at the same time, the petitioners should not be penalised by recovering the amounts already paid to them. As held by the Supreme Court, the court has discretion to grant relief on the question of recovery. Accordingly, the respondent NLC is directed not to recover the excess amounts already paid. But at the same time, their action taken in withdrawing the increment as well as refixing the pay is not disturbed. All the writ petitions are disposed of accordingly. No costs. Consequently connected miscellaneous petitions stand closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar vvk https://hcservices.ecourts.gov.in/hcservices/ To The Deputy Chief Manager (Personnel) TPS-II, O/o the Chief General Manager, Thermal Power Station-II & Extension, Neyveli Lignite Corporation Ltd., Neyveli. 8 ccs To Ms.Selvi George, Advocate, SR.60661 to 60668 W.P.Nos.9364 to 9367, 20592, 20593, 21698 and 21699 of 2011 TS(CO) RH (11.10.11) https://hcservices.ecourts.gov.in/hcservices/