IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 09-07-2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.49452 of 2006 (T) (O.A.No705 of 2001) T.Rangarajan .. Petitioner. Versus 1.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 Accountant General (A&E), Tamil Nadu, Chennai-18. .. Respondents. Prayer: Original Application No.705 of 2001 filed before the Tamil Nadu Administrative Tribunal, on abolition, transferred to the file of this Court and renumbered as Writ Petition No.49452 of 2006, seeking for a writ of Certiorarified Mandamus to call for the records relating to 1) P15/2/R149-1224/99-2000/ADK, dated Nil. Signed on 15.1.2000, 2) Proc.Lr.No.AD1/1 (587)/2000, dated Nil .02.200. signed on 24.2.2000 and 3) Proc.Lr.No.F3/2000, dated 9.3.2000 of the 4th, 2nd and 3rd respondents respectively, quash the same and issue directions to the respondents to refund the amount of Rs.88,785/- to the petitioner with interest. For Petitioner : Ms.R.Prasana Devi For Respondents : Mr.V.Arun Additional Government Pleader O R D E R Heard the learned counsel appearing for the petitioner and the learned 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, on 3.8.1963, and he had been promoted as Selection Grade Maistry, on 1.12.1964. Thereafter, he had been appointed as Selection Grade Work Inspector, with effect from 24.11.1970, which is the date on which he was absorbed into the State service. Later, by a Government of Tamil Nadu, Public Works Department, Memorandum, dated 29.1.1971, the designation of Selection Grade Maistry had been changed as Selection Grade Work Inspector. By a Government Order No.142, Public Works Department, dated 3.2.1973, the petitioner's pay had been fixed in the cadre of Work Inspector Grade-II. Accordingly, the pay of the petitioner had been reduced. Later, in the proceedings of the first respondent, dated 24.1.1981, and the memo, dated 12.2.1981, clarifications had been issued to restore the pay of those who had been promoted by the Executive Engineer, in accordance with the prevalent procedures for their regularisation, upto 30.5.1973 and for those whose nomenclature and their designations had been changed from Selection Grade Work Inspector to Work Inspector Grade-II, between the period from 24.11.1970 to 30.5.1973. 3. It has been further stated that since the petitioner had been working as Selection Grade Work Inspector, with effect from 1.12.1964, his pay had been fixed on par with Work Inspector Grade-II cadre, in accordance with G.O.Ms.No.142, Public Works Department, dated 3.2.1973. Based on the request made by the petitioner the pay scale of the petitioner had been revised and he had been paid all the consequential monetary benefits. However, by the impugned proceedings of the respondents, the excess amounts said to have been paid to the petitioner were ordered to be recovered. 4. The main contention of the learned counsel appearing for the petitioner is that the respondents had passed the impugned orders, without having the power or jurisdiction to do so. The impugned orders have been issued to recover the amounts already paid to the petitioner, without issuing a prior notice to him and without giving him an opportunity to put forth his case. The impugned orders have been issued, without proper application of mind and without considering the previous records relating to the matter. Further, the consent letter said to have been given by the petitioner for the recovery of Rs.88,785/-, from the Death-cum-Retirement Gratuity, has been obtained from him under coercion. The pay scales of the petitioner had been refixed by the concerned authorities based on the Government Orders and the relevant regulations applicable to the case. Hence, the amounts said to have been paid in excess is not due to any misrepresentation or fraud on the part of the petitioner. In such circumstances, the impugned orders are liable to be set aside. 5. Even though the claims made by the petitioner have been denied 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 prior notice before the impugned proceedings had been passed. It is not the case of the respondents that the refixation of the pay scale of the petitioner had been done due to the misrepresentation or fraud on the part of the petitioner. 6. Further, the recovery of the excess amounts said to have been paid to the petitioner cannot be made, as held by this Court in its order, dated 27.6.2008, made in W.P.No.16150 of 2006 and as held in the following decisions: 4.1) In Shyam Babu Verma V. Union of India ((1994) 2 SCC 521), the Supreme Court had held that it is not just and proper to recover any excess amounts already paid to the petitioner, since the petitioners have received the higher scale of pay due to no fault of theirs. 4.2) 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. 4.3) 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. 4.4) 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. 4.5) In PURSHOTTAM LAL DAS Vs. STATE OF BIHAR ((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. 4.6) 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. https://hcservices.ecourts.gov.in/hcservices/ 4.7) In the decision of the Supreme Court, in State of Bihar and Ors Vs. Pandey Jagdishwar Prasad (2008(1) UJ 197 (SC), it has been held that where due to confusion in date of birth due to negligence and lapses on the part of the authorities due to which a service holder worked beyond his service tenure and was paid for it, no deduction could be made for that period from the retiral dues." 4.8) 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. 4.9) 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. 4.10) 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. 7. In view of the submissions made by the learned counsel appearing on behalf of the petitioner, and in view of the decisions cited above, the impugned orders are set aside, in so far as it relates to the recovery of the amounts already paid to the petitioner, as salary. However, it is open to the respondents to regularise the scale of pay of the petitioner, in accordance with law, after affording a reasonable opportunity to the petitioner, to put forth his case. Accordingly, the writ petition is allowed as noted above. No costs. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar csh https://hcservices.ecourts.gov.in/hcservices/ To 1.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 Accountant General (A&E), Tamil Nadu, Chennai-18. +1 cc to Mr.M.Ravi, Advocate, SR.No.30292 1 cc To The Government Pleader, SR.30262 Writ Petition No.49452 of 2006(T) DM {CO} TP/27.7.2009. https://hcservices.ecourts.gov.in/hcservices/