IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 27-06-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.16150 of 2006 (O.A.No.1932 of 1996) 1.T.V.Sundararajan (deceased) 2.s.Jayalakshmi 3.R.Anandhi 4.S.Viji 5.C.Latha .. Petitioners. Versus 1.The Joint Director of School, Education (Personnel), Madras-6. 2.The District Elementary Educational Officer, D.P.I. Compound, College Road, Madras-6, 3.The Assistant Elementary Educational Office, Karur-630 001, Dheeran Chinnamalai District. .. Respondents. (Petitioners 2 to 5 substituted as LRs of deceased petitioner as per the order, dated 25.06.2008, in W.P.M.P.NO.1349 of 2007 in W.P.No.16150 of 2006 by MJJ.) Prayer: This petition has been filed seeking for a writ of Certiorari, to call for the records relating to the order of the II Respondent, dated 28.12.1995, issued in Na.Ka.No.4749/A1/95 and to quash the same. The O.A.No.1932/1996 on the file of the Tamil Nadu Administrative Tribunal, Chennai has been transferred and renumbered as WP.16150/2006. For Petitioner : Ms.Dhanalakshmi For Respondents : Mr.T.Sreenivasan Government Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E R Heard the learned counsel appearing for the petitioners and the learned Additional Government Pleader appearing for the respondents. 2. It is stated by the petitioners that in the year 1963 the original petitioner, T.V.Sundara Rajan was appointed as a Lower Division Clerk in the respondent Department. He was promoted as an Assistant in the year 1982. As such, the early increment was sanctioned and paid to the petitioner. However, when the petitioner, T.V.Sundara Rajan, had submitted a representation in the year, 1994, for being promoted to the post of Superintendent, by the proceedings of the Joint Director, a note had been issued stating that the petitioner, T.V.Sundara Rajan, ought to have passed the District Office Manual Test to get the increments. Consequently, the impugned order was passed by the second respondent in Na.Ka.No.4749/A1/95, dated 28.12.1995, ordering recovery of increments already paid to the petitioner, from 1.4.84 to 1.4.93. 3. It is stated by the learned counsel for the petitioners that the increments were sanctioned and paid to the petitioner T.V.sundara Rajan by the respondents and there was no misrepresentation on the part of the petitioner T.V.Sundararajan, based on which increments were paid. Further, no notice had been issued to the petitioner T.V.Sundararajan, before the impugned order of recovery was passed. 4. In the reply affidavit filed on behalf of the respondents, it has been stated that the petitioner, T.V.Sundara Rajan, had joined duty as an Assistant from 1.6.82 and he should have passed the District Office Manual Test on or before 31.5.84 to be eligible to draw increments in the category of Assistants. However, the annual increments were sanctioned and paid to him, erroneously. 5. The main contention of the learned counsel for the petitioner is that no prior notice had been issued to the petitioner T.V.Sundararajan, before the impugned order of recovery, dated 28.12.95, had been passed by the second respondent. Further, there was no misrepresentation or fraud committed by the petitioner T.V.Sundararajan, based on which the annual increments were sanctioned and paid to him. https://hcservices.ecourts.gov.in/hcservices/ 6. 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. The learned counsel for the petitioners had relied on the decision of this Court, dated 26.3.2008, made in W.P.No.36514 of 2007. 7. The learned counsel appearing for the respondents had not refuted the contentions raised on behalf of the petitioners. 8. 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. 8.1) 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. 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. https://hcservices.ecourts.gov.in/hcservices/ 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. 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. Based on the submissions made by the learned counsels appearing on either side and on a perusal of the records available, it is seen that the petitioner T.V.Sundararajan, had died on 11.7.2006, and by an order passed by this Court in W.P.M.P.No.1349 of 2007, dated 25.6.2008, the legal heirs of the petitioner, T.V.Sundara Rajan, had been brought on record. Further, it is seen that the increments have been paid to the petitioner, T.V.Sundara Rajan, by the respondents and it was not based on any misrepresentation on his part. Further, no notice had been issued by the respondents before the impugned order of recovery was passed. The petitioner T.V.Sundararajan, cannot be held liable for the fault committed by the concerned authorities who were responsible for granting the annual increments to him. An order of interim stay of the impugned order has been granted by the Tamil Nadu Administrative Tribunal and therefore, no recovery, has been effected till date. 10. In such circumstances, the impugned order of the second respondent, dated 28.12.95, made in Na.Ka.No.4749/A1/95, seeking https://hcservices.ecourts.gov.in/hcservices/ to recover the excess amount paid to the petitioner T.V.Sundararajan, is liable to be set aside, as it has been passed without issuing the necessary notice to the petitioner T.V.Sundararajan and without giving him an opportunity to put forth his case. Further, it is not the case of the respondents that the excess amount had been granted to the petitioner T.V.Sundararajan, based on his misrepresentation or fraud. Therefore, the impugned order of the second respondent, dated 28.12.95, is set aside. The writ petition stands allowed. No costs. csh Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To 1.The Joint Director of School, Education (Personnel), Chennai-6. 2.The District Elementary Educational Officer, D.P.I. Compound, College Road, Chennai-6, 3.The Assistant Elementary Educational Office, Karur-630 001. 1 cc to M/s.K.Dhanalakshmi, Advocate, SR.33012 ma (co) dv/29.8. Writ Petition No.16150 of 2006 https://hcservices.ecourts.gov.in/hcservices/