IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:09.08.2010 CORAM THE HONOURABLE MR. JUSTICE T.RAJA W.P.No.44115 of 2006 (T) O.A.No.1866 of 2000 1.A. Manickam 2.M. Anbalagi 3.S. A.Dhangavelu 4.P. Ramalingam 5.A. Durairaj 6.K.R. Kandasamy 7.C.M. Mathaiyan 8.V. Palaniyandi 9.P. Srinivasan 10.A. Basuvalingam 11.P. Manoharan 12.P. Chinnapaniyan 13.V. Muthusamy 14.M. Laxmanan 15.R. Sivalingam 16.M. Madhaiyan 17.A. Saraswathi 18.P. Rajamanickam 19.K. Chitrambalam 20.A. Kalaichelvan 21.P. Palanimalai 22.P. Ramasamy 23.R. Raja 24.M. Thirunavukkaasu 25.S. Shanthi ... Petitioners Vs 1.District Backward Classes & Minorities Welfare Officer Salem, Salem District. 2.District Backward Classes & Minorities Welfare Officer Namakkal, Namakkal District. ... Respondents PRAYER: This Writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.1866 of 2000 on the file of the Tamil Nadu Administrative Tribunal, Chennai, Writ of Certiorari for issuance to call for the records pertaining to the https://hcservices.ecourts.gov.in/hcservices/ order passed by the first respondent in his Proceedings Roc.No.31766/97(BC3) dated 24.12.99 and set aside the same in so far as the petitioners are concerned. For Petitioners : Mr.P. Ganesan For Respondents : Mr.S. Gopinathan, AGP ORDER All the petitioners, working as Hostel Warden in Namakkal District of various Government Boys Hostel, have filed the present petition challenging the order of recovery passed by the respondents on the ground that the Accountant General, Chennai, raised objection that the food charges for the month from August, 1994 to November, 1994, incurred by the petitioners by paying the increased rate, was not permissible. 2. Learned counsel appearing for the petitioners submits that there has been a direction to all the Hostels to purchase the rice only from the Tamil Nadu Civil Supplies Corporation. The Government also passed an order fixing the rate per kilo for the items to be purchased from the concerned outlets. As per the above said direction, when the Hostel Wardens were purchasing the rice from the Tamil Nadu Civil Supplies Corporation, the Tamil Nadu Civil Supplies Corporation increased the rate of rice from Rs.2/- to Rs.3.75/- per k.g. Therefore, the petitioners/Hostel Wardens were compelled to pay the revised rate from August, 1994. Though these difficulties were brought to the notice of the higher officials, including the Director, during the course of their inspection by demanding specific order from the Directorate, it was informed that they have to write the matter to the Government and it is only the Government, which can fix the rate. Finally, when the matter was taken up to the Government, the Government have issued orders revising the rate in G.O.Ms.No.55, Backward Classes and Most Backward Classes Welfare Department, dated 17.11.1994, but the said order came to effect only from 01.12.1994. When the Directorate failed to apprise the matter before the Government, they have to ratify the action of the Wardens who were compelled to purchase the rice only from Civil Supplies Corporation at the revised rate from August, 1994. Therefore, the Wardens cannot be compelled to pay the differential amount from their pockets. 3. At this juncture, learned counsel appearing for the petitioners submits that the Wardens have no authority to purchase from outside and they have compelled to purchase only from the Civil Supplies Corporation. Only upon the Audit objection, they have passed the impugned order seeking to recover the differential amount from the petitioners/Hostel Wardens, who were compelled to purchase https://hcservices.ecourts.gov.in/hcservices/ only from the approved outlet of Tamil Nadu Civil Supplies Corporation at the increased rate fixed by them. As far as Namakkal District is concerned, the petitioners are required to pay a sum of Rs.76,123/- being differential cost of rice, which they were compelled to purchase from the Civil Supplies Corporation. Therefore, it was contended that the impugned order is totally arbitrary, illegal and the same is required to be set aside. 4. Heard the learned counsel appearing on either side and perused the materials available on record. 5. Admittedly, the petitioners/Hostel Wardens are directed to purchase all the items including rice only from the Tamil Nadu Civil Supplies Corporation for the purpose of preparing food for the students staying in the hostels. When the Civil Supplies Corporation increased the rate of all the articles, they had no other option except to purchase only from the approved shops run by the Tamil Nadu Civil Supplies Corporation. The petitioners working as Wardens in various hostels belonging to students coming from Backward Classes and Most Backward Classes in Salem District, were compelled to purchase only from the approved shops run by the Tamil Nadu Civil Supplies Corporation. Whether the rate of food articles, like, rice, wheat, vegetables, etc. are increased or decreased, they were to purchase only from those selected shops. When the food articles, sold from the above mentioned shops run by the Tamil Nadu Civil Supplies Corporation, were increased, in an effort to run the hostel administration, by giving food to the students staying in the hostel, they had no other option, except to purchase at the increased rate by issuing official cheques from the hostel account. When this has been accepted by the respondent/Director of Social Welfare Department, then there is no point in passing the impugned order of recovery seeking to recover the differential amount between the fixed rate and the increased rate, which cannot be sustainable in the eye of law. It is not the case of the respondent that the petitioners, while serving as Wardens, ignoring the direction issued by the various Government Orders, purchased the food articles from the unapproved shops or outlets not run by the Tamil Nadu Civil Supplies Corporation. Therefore, the excess expenditure incurred towards food charges, cannot be directed to be recovered from the petitioners/Hostel Wardens. 6. In a similar circumstances, this Court, in W.P.No.33102 of 2006, dated 17.09.2009, by relying upon the Apex Court judgment in the case of Syed Abdul Qadir and others Vs. State of Bihar and others reported in (2009) 3 SCC 475, has held as follows:- 4.The Honourable Supreme Court, in the decision rendered in (Syed Abdul Qadir and others vs. State of Bihar and others) (2009) 3 SCC 475 held in para Nos. 58, 59 and 61 as under:- https://hcservices.ecourts.gov.in/hcservices/ "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 vs. State of Haryana, Shyam Babu Verma vs. Union of India, Union of India vs. M. Bhaskar, V. Gangaram vs. Director, Col.B.J. Akkara (Retd) vs. Govt. of India, Purushottam Lal Das vs. State of Bihar, Punjab National Bank vs. Manjeet Singh and Bihar SEB vs. Bijay Bahadur. 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 bonafide 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 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 and 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. 61. In the result, the appeals are allowed in part; the impugned judgment so far as it relates to the direction given for recovery of the amount that has been paid in excess to the https://hcservices.ecourts.gov.in/hcservices/ appellant teachers is set aside and that part of the impugned judgment whereby it has been held by the Division Bench that the amended provisions of FR 22-C would apply to the appellant teachers is upheld. We direct that no recovery of the excess amount, that has been paid to the teachers of secondary schools, be made, irrespective of the fact whether they have moved this Court or not. We also direct that the amount that has been recovered from some of the teachers, after the impugned judgment was passed by the High Court, irrespective of the fact whether they have moved this Court or not, be refunded to them within three months from the date of receipt of copy of this judgment." 5.In the light of the judgment of the Supreme Court cited supra, this writ petition stands allowed. No costs. In view of the principles enunciated by the Hon'ble Apex Court in the above said judgment, this Court, by setting aside the impugned order, allows the present writ petition. No Costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar rkm To 1.The District Backward Classes & Minorities Welfare Officer Salem, Salem District. 2.The District Backward Classes & Minorities Welfare Officer Namakkal, Namakkal District. + 1 cc to Government Pleader SR.58287 + 1 cc to Mr. S. Mani, Advocate Sr.58352 W.P.No.44115/2006 AKR(CO) Eu 8.09.2010. https://hcservices.ecourts.gov.in/hcservices/