IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.02.2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition No.991 of 2006 A.VEDA SOOSAI MANICKAM ..PETITIONER Vs 1. OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL (ACCOUNTS & ENTITILEMENTS) REP. BY ITS ACCOUNT OFFICER TEACHERS RETIREMENT SECTION 261, ANNA SALAI, CHENNAI-18. 2. THE ASSISTANT EDUCATIONAL OFFICER RAJASINGA MANGALAM, RAMNAD DISTRICT. 3. THE DISTRICT ELEMENTARY EDUCAIONAL OFFICER RAMNAD, RAMNAD DISTRICT. ..RESPONDENTS Writ Petition filed under Article 226 of the Constitution of India praying for a writ of Certiorified Mandamus calling for the records relating to the order, dated 06.2.2001 of the first respondent and quash the same and consequenly direct the first respondent to pay the sum of Rs.68 614/- recovered from death cum retirement gratuity amunt together with interest at 18% per annum and pass such further or other orders. For Petitioner : Ms.A.L.Gandhimathi For Respondents : Mr.T.Ravikumar for R1 Mrs.Dakshayani Reddy Government Advocate for R2 & R3 O R D E R This writ petition has been filed challenging the order of the first respondent, dated 6.2.2001, proposing to recover a sum of https://hcservices.ecourts.gov.in/hcservices/ Rs.68,614/- from the death cum retirement gratuity due to the petitioner. 2. The petitioner has stated that he had joined in service, as a junior assistant teacher, in R.C. Primary School, Eruthayapuram, on 2.7.1959. on 10.6.1960, he was appointed as a middle school headmaster, in C.A.V.Bharath High Primary School, Sathamangalam. On 10.6.1966, the petitioner had been terminated from service, by the management of the said school, based on the allegation that he had openly supported a candidate, who was contesting in the election to the office of President of the panchayat. Against the order of termination, the petitioner had filed an appeal before the District Educational Officer, Devakottai. The said appeal had been dismissed, directing the management to give three months salary to the petitioner and to dispense with his service. 3. Aggrieved by the said order, the petitioner had filed a second appeal before the Divisional Inspector of Schools, Tirunelveli Division. By an order, dated 11.6.1968, the Divisional Inspector of Schools, Tirunelveli division, had allowed the second appeal and had directed the Management to reinstate the petitioner in service, treating the period of his unemployment as on duty period. The said order had been challenged by the Management, before this Court, by way of a writ petition, in W.P.No.2363 of 1968. This Court, by an order, dated 17.3.1969, had dismissed the writ petition. Thereafter, the management of C.A.V.Bharat High primary School, had reinstated the petitioner in service, with backwages. However, the petitioner had been reverted from the post of Headmaster to that of a secondary grade teacher. 4. On 21.6.1973, the petitioner had once again been appointed as a middle school headmaster, in the said school. On 21.6.1974, the said school had been absorbed by the Government, as a panchayat union school, under the Sathamangalam Panchayat Union. Again, on 1.7.1976, the petitioner had been reverted as a secondary grade teacher in Raja Singa Mangalam Panchayat Union School. Aggrieved by the order of reduction in grade, the petitioner had preferred an appeal to the District elementary educational officer, Ramnad. On 9.8.1988, the petitioner had been appointed as the Headmaster in Panchayat Union Primary school, Elangudi. While so, the third respondent, by his proceedings, dated 18.9.1991, had allowed the appeal and had refixed the petitioner’s pay and had permitted the petitioner to receive the salary, as a headmaster, from 1.7.1976 and had directed the second respondent to enter the same in the service register. Accordingly, by his proceedings, dated 24.3.1992, the second respondent had refixed the salary of the petitioner. 5. By proceedings, dated 22.5.1992, the Chief Educational Officer, Ramnad, had ordered selection grade and special grade to the petitioner. The second respondent had also implemented the https://hcservices.ecourts.gov.in/hcservices/ proceedings of the Chief Educational Officer, by his proceedings, dated 11.6.1992. Based on the said proceedings, the petitioner’s pay had been refixed and he had received all the benefits. Thereafter, the petitioner had retired from service, on 31.1.1995, on attaining the age of superannuation. However, without issuing any notice to the petitioner and without giving him an opportunity to put forth his case, the first respondent had issued the impugned order, dated 6.2.2001, stating that a sum of Rs.68,614/- was being recovered from his death cum retirement gratuity. As such, only the balance of the gratuity amount of a sum of Rs.43,164/- had been released. In such circumstances, the petitioner had preferred the present writ petition before this Court, under Article 226 of the Constitution of India. 6. A counter affidavit had been filed on behalf of the first respondent stating that the petitioner had been awarded selection grade, in the post of middle school headmaster, on 20.6.1983 and special grade, in the said post, on 21.6.1987. However, when the pension proposals were received by the first respondent, the award of selection and special grade to the petitioner, in the post of middle school headmaster, was objected to on the ground that the petitioner was not officiating as a middle school headmaster, on 1.10.1970, and therefore, he was not eligible for the pay and scale protection, as per G.O.Ms.No.1178, Education Department, dated 22.12.1993. Therefore, the excess amounts, paid as pay and allowances, were ordered to be recovered, from the death cum retirement gratuity of the petitioner. In fact, the Government had issued orders, in G.O.Ms.No.661, Finance (Pen) Department, dated 6.9.1991, stating that all the Government dues including the dues to local bodies and co- operative societies can be recovered from the gratuity payable to the Government servant or to his family. Accordingly, the amount of Rs.68,614 had been recovered from the death cum retirement gratuity of the petitioner. 7. The learned counsel appearing for the second and the third respondents had pointed out that the Supreme Court, in a recent decision, in REGISTRAR, COOPERATIVE SOCIETIES HARYANA AND OTHERS Vs. ISRAIL KHAN AND OTHERS (2010) 1 SCC 440) had held that, in certain cases, recovery of the excess payments, already made, is permissible. However, he has not been in a position to show that the decision of the Supreme Court cited supra is squarely applicable to the present case. On the other hand, it is seen that in a number of decisions, this Court had passed orders stating that the excess salary, that had been paid, cannot be recovered, unless it is based on misrepresentation or fraud. 8. The following decisions, relating to the recovery of excess amounts paid to the employees, are in favour of the petitioner in the present writ petition. https://hcservices.ecourts.gov.in/hcservices/ 8.1) In PURSHOTTAM LAL DAS Vs. STATE OF BHIAR ((2006) 11 SCC 492) , the Supreme Court had held that the recovery of the excess amounts paid to the employees could be recovered only in such cases where they have been found guilty of producing forged certificates or their appointments had been secured on non-permissible grounds. 8.2) The Supreme Court, in BIHAR STATE ELECTRICITY BOARD Vs. BIJAY BHADUR ((2000) 10 SCC 99) had held that the recovery of the increments given, not on account of any representation or misrepresentation, cannot be sustained, as it would not be in consonance with equity, good conscience, justice and fairness. 8.3) In UNION OF INDIA Vs. REKHA MAJHI ((2000) 10 SCC 659), the Supreme Court had refused to permit the recovery of excess payment made, since the person against whom the recovery was to be made was the only breadwinner of the family and as she was financially not in a position to pay back the excess dearness relief drawn. 8.4) The Supreme Court, in SAHIB RAM Vs. STATE OF HARYANA ((1995) Supp (1) SCC 18) had held that the recovery of excess payment given by the authorities concerned, by wrong construction of the relevant orders, without any misrepresentation by the employee, cannot be made. 8.5) In the decision of the Supreme Court in BABULAL JAIN Vs. STATE OF M.P. ((2007) 6 SCC 180), it was held that since the excess payment had been made on misconception of law and not due to any mistake or misrepresentation on the part of the appellant, the recovery of the excess amount, without issuing any show cause notice, is not justified. 8.6) 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 was not responsible for the wrong fixation, the excess payment made cannot be recovered, especially, after the retirement of the employee and when the recovery was sought for after 17 years of service. 8.7) In D.PALAVESAMUTHU Vs. T.N. ADMINISTRATIVE TRIBUNAL ((2006) (3) L.L.N.461), a Division Bench of this Court had held that when the fault of excess payment was committed by the Department and their officers and it was not due to the petitioner, the petitioner cannot be penalised after the lapse of number of years, that too after his retirement. https://hcservices.ecourts.gov.in/hcservices/ 8.8) In KANTHIMATHI, S.A. Vs. DIRECTOR OF SCHOOL EDUCATION, MADRAS ((2006) 1 M.L.J. 695), this Court had held that the recovery of excess amount paid cannot be recovered when it was not due to the fault of the petitioner and when no opportunity had been given to her before the order of recovery was passed. Since the salary paid to the petitioner was not on account of any misrepresentation and when the order had been passed without giving any opportunity to the petitioner to put forth her case, the impugned order of recovery was quashed. 9. In view of the submissions made on behalf of the parties concerned and on a perusal of the documents available and in view of the decisions cited supra, this Court is of the considered view that the recovery of the excess amount of salary paid to the petitioner cannot be recovered from the death cum gratutity of the petitioner. It is seen that the impugned order of recovery has been issued by the first respondent, without giving a prior notice to the petitioner and without giving an opportunity to putforth his case. Further, it has not been shown, on behalf the respondents, that the excess amount of salary had been paid to the petitioner due to his misrepresentation or fraud. In such circumstances, the impugned order of the first respondent is set aside, as it is unsustainable in the eye of law. The respondents are directed to settle the death cum retirement gratuity, due to the petitioner, within a period of twelve weeks from the date of receipt of a copy of this order. The writ petition is ordered accordingly. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. THE ACCOUNT OFFICER, OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL (ACCOUNTS & ENTITILEMENTS) TEACHERS RETIREMENT SECTION, 261, ANNA SALAI, CHENNAI-18. 2. THE ASSISTANT EDUCATIONAL OFFICER, RAJASINGA MANGALAM, RAMNAD DISTRICT. https://hcservices.ecourts.gov.in/hcservices/ 3. THE DISTRICT ELEMENTARY EDUCAIONAL OFFICER, RAMNAD, RAMNAD DISTRICT. + 1 c.c. to Mrs. AL. Ganthimathi, Advocate. S.R.No.10520. + 1 c.c. to Mr. T. Ravikumar, Advocate. S.R.No.10406. + 1 c.c. to The Government Pleader. S.R.No.10656. Writ Petition No.991 of 2006 NSM (CO) GSK 25.02.2010. https://hcservices.ecourts.gov.in/hcservices/