IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.06.2009 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition No.48507 OF 2006 (T) O.A.No.658 of 2001 1. S.Kaliappan 2. R.Periyakali 3. A.Perumal 4. T.Krishnan 5. K.Kalaimani 6. B.Balakrishnan 7. S.K.Raju 8. A.Paramasivam 9. C.Krishnan 10.A.Rajagopal 11.M.Chinnathambi 12.M.Vijayan 13.S.Natarajan 14.K.Sundaram 15.N.Muthulingan 16.C.Jayachandran 17.P.Kumaresan 18.K.S.Prabhu 19.P.Perumal 20.C.Palanisamy 21.C.Subramaniam 22.P.Vangili 23.V.Santha Kumar 24.M.Muthusamy 25.P.Srirangan 26.D.Radhakrishnan 27.C.Parthiban 28.K.Annamalai 29.C.Govindasamy 30.P.Kandhammal 31.K.Palanisamy 32.M.Perumal 33.V.Madesh 34.A.Jayaseelan 35.S.R.Chandrahasan 36.A.Marimuthu 37.V.Manickam 38.K.Rajagopal 39.M.Thangavel https://hcservices.ecourts.gov.in/hcservices/ 40.R.Narayanasamy 41.G.Kannan 42. N.Chinnakulandai .. Petitioners/Applicants vs. 1. The Secretary to Government Higher Education Department Chennai-9 2. The Director of Technical Education Guindy, Chennai-25 3. The Principal Government Engineering College Salem-636 011 .. Respondents/Respondents Writ Petition filed under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus to call for the records in pursuant to the impugned order of recovery passed by the 3rd respondent in proc.No.7409/C2/99-1 dated 26.9.2000 and quash the same and so far as the petitioners are concerned and direct the respondents to pay the revised scales of pay as per G.O.Ms.No.739 Finance Department dated 18.12.1996 till the implementation of the next revised pay. For petitioners : Mr.R.Subburaj For respondents : Ms.S.Anitha Government Advocate O R D E R Heard the learned counsels appearing for the parties concerned. 2. It is submitted by the learned counsel appearing for the petitioners that the petitioners had been employed in various posts in the Government Engineering College, Salem. The pay scales of the petitioners had been revised, based on the Government order, in G.O.Ms.No.739, Finance Department, dated 18.12.1996. However, the third respondent had issued the impugned order seeking to recover the amounts paid as salary to the petitioners without issuing any notice to them and without giving them an opportunity to putforth their cases. 3. No counter affidavit has been filed denying the statements made by the learned counsel appearing for the petitioners. 4. The main contention of the learned counsel for the petitioners is that no prior notice had been issued to the https://hcservices.ecourts.gov.in/hcservices/ petitioners before the impugned order had been passed. Further, there was no misrepresentation or fraud committed by the petitioners, based on which the refixation of the petitioners' scale of pay was done. 5. The learned counsel has also submitted that in similar circumstances, this Court had set aside the orders issued by the concerned authorities attempting to recover the amounts paid as salary, increments and other allowances. 6. The learned Government Advocate appearing for the respondents had not refuted the contentions raised on behalf of the petitioners. 7. The following decisions, relating to the recovery of excess amounts paid to the employees, are in favour of the petitioners in the present writ petition. 10.1) 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. 10.2) 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. 10.3) 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. 10.4) 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. 10.5) 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. https://hcservices.ecourts.gov.in/hcservices/ 10.6) 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. 10.7) 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. 10.8) 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. 8. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and in view of the decisions rendered by the Courts of law and on a perusal of the records available before this Court, it is clear that the excess amounts said to have been paid to the petitioners is not due to any misrepresentation or fraud on the part of the petitioners. Further, no notice had been issued to the petitioners to put forth their cases before the impugned order of recovery had been passed. The petitioners cannot be held liable for the fault committed by the concerned authorities, who were responsible for fixing the scale of pay of the petitioners. 9. In such circumstances, the impugned orders issued by the third respondent in proc.No.7409/C2/99-1, dated 26.9.2000, insofar as it seeks to recover the excess amounts paid to the petitioners, is liable to be set aside, as it has been passed without issuing the necessary notice to the petitioners and without giving them an opportunity to put forth their cases. Further, it is not the case of the respondents that the excess amount had been granted to the petitioners based on their misrepresentation or fraud. However, it is open to the respondents to refix the scales of pay, in accordance with the rules and the Government orders applicable to the petitioners, after giving them an opportunity of being heard. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, the writ petition stands allowed to the extent noted above. No costs. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar lan To 1. The Secretary to Government Higher Education Department Chennai-9 2. The Director of Technical Education Guindy, Chennai-25 3. The Principal Government Engineering College Salem-636 011 +1 cc to Government Pleader,SR.26078 + 1 cc to Mr.S.M.Subramaniam,Advocate,SR.25500 Writ Petition No.48507 OF 2006 (T) O.A.No.658 of 2001 PUR(CO) EM/10.7.09 https://hcservices.ecourts.gov.in/hcservices/