IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 17-11-2008 Coram: The Honourable Mr.Justice M.JAICHANDREN W.P.No.3349 of 2003 U.S.Manickam .. Petitioner. Versus 1.The Assistant Director, Local Fund Audit, Trichy Corporation,Trichy. 2.The Commissioner, Trichy Corporation, Trichy. 3.The Commissioner, Pudukkottai Municipality, Pudukkottai. 4.The Accountant General, Teynampet, Madras. .. Respondents. Prayer: Petition filed seeking for a writ of Certiorarified Mandamus, calling for the records relating to the order of the 1st respondent, dated 25.2.99, issued in the Ref.No.Nee.Mu.No.18/99/ Tha 1 and quash the same in so far as it relates to reduction and cancelling the increment and reducing the pay and the order of the II respondent, dated 21.3.99, issued in the Ref.No.Na.Ka.No.P4/15560/98, and quash the same in so far as it relates to cancelling the increment and reduction of pay and retirement benefits and recovery and further direct the respondents to restore the order of the Commissioner Pudukkottai Municipality, dated 20.1.94, issued in Na.Ka.No.1/14849/93, and to pay the consequential benefits. For Petitioner : Mr.R.Muthukannu For Respondent : Mr.P.Muthukumar Government Advocate (R3) Mr.P.Srinivas (R2) https://hcservices.ecourts.gov.in/hcservices/ O R D E R Heard the learned counsel appearing for the petitioner and the learned counsels appearing for the first and second respondents. 2. It has been stated that the petitioner had joined as a Health Assistant in the respondent Municipality, on 16.2.74. By an order of the second respondent, dated 12.6.92, he was promoted as a Sanitary Inspector. By the proceedings of the second respondent, dated 20.1.94, he was given an increment and his pay had been fixed at Rs.1900/- in the scale of pay of Rs.1600-2600. From 30.9.98, the petitioner had been permitted to go on voluntary retirement. 3. By the proceedings of the first respondent, dated 25.2.99, objections had been raised, with regard to the increment given to the petitioner based on his promotion. By the proceedings of the first respondent, dated 26.3.99, orders have been issued reducing the pension of the petitioner. Further, a sum of Rs.11,679/- had been ordered to be recovered. Being aggrieved by the order passed by the first respondent, the petitioner had made a representation, dated 19.7.99, to the first respondent. 4. By the proceedings, dated 2.3.2000, issued by the first respondent, the petitioner had been informed that certain clarifications had been sought for from the Director of Municipal Administration and that further steps would be taken based on the instructions obtained from the Director of Municipal Administration. Since no order had been passed the petitioner had submitted an appeal, dated 16.3.2000, to the Director of Local Fund Audit. Since no order had been passed in the said appeal, the petitioner had submitted an appeal, dated 1.9.2001, to the Commissioner of Municipal Administration. No order had been passed in the said appeal. However, the pension and other retirement benefits of the petitioner had been reduced, based on the impugned orders. In such circumstances, the petitioner has preferred the present writ petition before this Court, under Article 226 of the Constitution of India. 5. In the counter affidavit filed on behalf of the Assistant Director, Local Fund Audit, Trichy Corporation, it has been stated that as per G.O.Ms.No.120, Finance, dated 2.2.90, the post of Junior Sanitary Inspectors and Health Assistants in Corporations, Municipalities and Town Panchayats, were merged in the post of Sanitary Inspectors and they were placed in the scale of pay of Rs.1200-2040, with effect from 1.6.88 and in the scale of pay of Rs.1350-2200, with effect from 4.11.88. Hence, as per the said Government Order, the merger of the posts came into effect from 1.6.88. https://hcservices.ecourts.gov.in/hcservices/ 6. It has been further stated that as per the service register of the petitioner he was working as a Selection Grade Sanitary Inspector in the scale of pay of Rs.1600-50-2300-60-2600, with effect from 4.11.88 and drawing a basic pay of Rs.1800 in the above time scale of pay. However, as per the entry made in the service register of the petitioner, he was promoted from the post of Health Assistant to Sanitary Inspector in Proc.No.48677/92/J1, dated 12.6.92, of the Commissioner of Municipal Administration and the petitioner had joined as a Sanitary Inspector in Kumbakonam Municipality, on 25.6.92. His pay was also fixed at Rs.1850/- by allowing an increment while fixing his pay on his promotion as a Sanitary Inspector in the scale of pay of Rs.1600-2300-60-2600. 7. It has been further stated that since the posts of Junior Sanitary Inspectors and Health Assistants, were merged with that of Sanitary Inspector, with effect from 1.6.88, as per the Government Order, the petitioner was working as Selection Grade Sanitary Inspector with effect from 4.11.88 and the question of promoting him from the post of Health Assistant to that of Sanitary Inspector and the consequent grant of increment does not arise. While clarifying the eligibility of pension to the petitioner the excess pay fixed to the petitioner was pointed out in the Office Lr.No.R.Dis.18/99/T1, dated 25.2.99, issued by the first respondent. 8. In G.O.Ms.No.120, Finance (PC), dated 2.2.90, wherein merger of Health Assistants and Sanitary Inspectors was ordered, it was stated that the Health Assistants and Junior Sanitary Inspectors in Corporations and Municipalities possess the same qualifications and attend to same functions and therefore, the question of promotion from the post of Health Assistant to that of Sanitary Inspector does not arise. It has been further stated that the petitioner had voluntarily retired from service, on 30.9.98. His pension proposals were received in Letter No.15560/98/84, on 3.12.98, of the third respondent and based on the said proposal, pension was authorised in Lr.No.R.Dis.18/99/T1, dated 25.2.99, of the first respondent, based on which the Commissioner of Trichy Corporation, had passed orders in Proceedings No.Rc.B4/15560/98, dated 21.3.99, ordering recovery of excess payment due to the wrong fixation of salary. 9. In the counter affidavit filed on behalf of the Commissioner, Tiruchirappalli City Corporation, it has been stated that the averments made by the petitioner have been denied. It has been stated that the proceedings challenged by the petitioner have been issued only in accordance with the provisions of the Tiruchirappalli City Corporation and the Rules and the regulations framed thereunder. The fixation of pay in the post of Sanitary Inspector was objected to during the audit. It was pointed out by https://hcservices.ecourts.gov.in/hcservices/ the audit department that the fixation of pay was in violation of Fundamental Rule 22(B). Further, the Government in G.O.Ms.No.120, Finance Department, dated 2.2.90, had issued orders integrating the posts of Sanitary Inspectors, Junior Sanitary Inspectors and Health Assistants, with effect from 1.6.88, in the time scale of pay of Rs.1200-2040 and at Rs.1350-2200, with effect from 4.11.88. Thereafter, all the three categories of posts were treated as identical posts. As such the petitioner may not state that he was promoted to the post of Sanitary Inspector, on 12.6.92, when the Government had ordered combining of all the three categories of posts as Sanitary Inspectors from 1.6.88. 10. Even though as per G.O.Ms.No.281, Municipal Administration and Water Supply Department, dated 4.10.91, it has been ordered not to give effect to the work allocation and the re-distribution with respect to G.O.Ms.No.120, Municipal Administration and Water Supply Department, dated 2.2.90. Nowhere, it has been stated that the merger should not take place. As such the petitioner cannot claim the re-designation of his post as Sanitary Inspector, to be a promoted category. The petitioner had voluntarily retired from service, on 30.9.98. His pension proposals were received in Letter No.15560/98/B4, dated 31.12.93, of the Commissioner, Trichy Corporation and pension was authorised while verifying the entire service and pay fixation. The pay has been revised by the Assistant Director, Local Fund Audit, who is the pension sanctioning authority in his Letter No.R.Dis.18/99/T1, dated 25.2.99, based on which the Commissioner of Tiruchirappalli Corporation had passed orders in Proceedings No.Rc/B4/15560/98, dated 21.3.99, ordering recovery of the excess payment. 11. In view of the submissions made by the learned counsels appearing for the petitioner, as well as for the first and second respondents, it is clear that the fixation of higher pay scale and the increment given to the petitioner was not based on his misrepresentation or fraud. There is no dispute with regard to the fact that the increment granted to the petitioner was not due to his fault. Based on certain audit objections the increment granted to the petitioner and the pay fixation made in his favour had been revised. Further, the impugned orders have been issued without giving the petitioner an opportunity to put forth his case 12. In such circumstances, the recovery of the excess amount 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: 12.1) 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 https://hcservices.ecourts.gov.in/hcservices/ received the higher scale of pay due to no fault of theirs. 12.2) 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. 12.3) 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. 12.4) 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. 12.5) 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. 12.6) 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. 12.7) 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. 12.8) 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/ 12.9) 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. 13. Further, the Supreme Court in Lakshmi Narayan Mukhopadhyay Vs. Union of India and others (2002(10) SCC 379), had held that the order of recovery of a certain sum made from the appellant's gratuity amounts on the ground that he had supplied excess materials to the contractors while working as Inspector of Works, without observing the guidelines issued by the headquarters, without giving an opportunity to the appellant, was bad in law. 14. In such circumstances, the impugned orders of the first respondent, dated 25.2.1999, and of the second respondent, dated 21.3.1999, are set aside. However, it is open to the respondents to initiate appropriate action to re-fix the pay scale of the petitioner and to pay him the retiral benefits due to him based on such re-fixation, after giving him an opportunity of being heard. However, the amounts already paid to the petitioner, as increment, cannot be recovered by the respondents for the reasons stated above. The writ petition is ordered accordingly. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. csh To 1.The Assistant Director, Local Fund Audit, Trichy Corporation, Trichy. https://hcservices.ecourts.gov.in/hcservices/ 2.The Commissioner, Trichy Corporation, Trichy. 3.The Commissioner, Pudukkottai Municipality, Pudukkottai. 4.The Accountant General, Teynampet, Madras. 1 cc to Mr.P. Srinivas, Advocate, SR. 64101 1 cc to Mr.P.Muthukumar, Advocate, SR. 63942 1 cc to Mr.R. Muthukkannu, Advocate, Sr. 64239 W.P.No.3349 of 2003 NTK (CO) kk 30/12 https://hcservices.ecourts.gov.in/hcservices/