IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 24-06-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.27002 of 2006(T) (O.A.No.7210 of 1996) E.Velammal .. Petitioner. Versus 1.Director of School Education, Madras-6. 2.District Educational Officer, Seranmahadevi, Tirunelveli Kattabomman District. 3.Headmaster, Government Higher Secondary School, Panagudi, Tirunelveli Kattabomman District. .. Respondents. Prayer: Upon Transfer, O.A has been numbered as Writ Petition and this petition has been filed seeking for a writ of Certiorari, to call for the records pertaining to the order passed by the 2nd respondent in Na.Ka.No.15171/A5/96, dated 29.8.96, and the consequential order of recovery passed by the 3rd respondent in Na.Ka.No.109/96, dated 11.9.96, and set aside the same. For Petitioner : Mr.S.Mani For Respondents : Mr.T.Sreenivasan Government Advocate. O R D E R Heard the learned counsel appearing on behalf of the petitioner and the learned Additional Government Pleader appearing on behalf of the respondents. 2. It is stated by the petitioner that she was appointed as a Junior Assistant, on 28.6.1981. She had appeared for the Special Qualifying Examination and the results were published in the month of https://hcservices.ecourts.gov.in/hcservices/ December, 1981. By an order, dated 20.2.1982, the petitioner had been appointed as a regular candidate, from 28.6.1981. Her probation was also declared, on 31.12.1984 and her services were regularised, with effect from 28.6.1981. It has also been stated that the cancellation of the probation by the impugned order of the second respondent, dated 29.8.96, and the consequential order of recovery, dated 11.9.96, issued by the third respondent are arbitrary, illegal and void. 3. The petitioner has also stated that her probation had been declared, on 27.6.83, based on which annual increments had been given to her. However, by the impugned order of the third respondent, the increments granted to the petitioner are sought to be recovered. It has also been submitted that no notice had been given to the petitioner before the order of cancellation of probation has been passed. Further, when such an order has been passed after twelve years after the declaration of probation, the increments granted to the petitioner cannot be recovered in accordance with the order passed by the third respondent, on 11.9.96, since no opportunity was given to the petitioner before passing the order, especially, when the increments were not given to the petitioner based on her misrepresentation. 4. The main contention of the learned counsel for the petitioner is that no prior notice had been issued to the petitioner before the impugned order of recovery, dated 11.9.96, had been passed by the third respondent. Further, there was no misrepresentation or fraud committed by the petitioner, based on which the increments were given to the petitioner. 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. The learned counsel for the petitioner had relied on the decision of this Court, dated 26.3.2008, made in W.P.No.36514 of 2007. 6. The learned counsel appearing for the respondents had not refuted the contentions raised on behalf of the petitioner. 7. The following decisions, relating to the recovery of excess amounts paid to the employees, are in favour of the petitioner in the present writ petition. 7.1) 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. https://hcservices.ecourts.gov.in/hcservices/ 7.2) 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. 7.3) 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. 7.4) 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. 7.5) 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. 7.6) 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. 7.7) 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. 7.8) 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. https://hcservices.ecourts.gov.in/hcservices/ 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 amount said to have been paid to the petitioner is not due to any misrepresentation or fraud on the part of the petitioner. Further, no notice had been issued to the petitioner to put forth her case before the impugned order of recovery has been passed by the third respondent, on 11.9.96. The petitioner cannot be held liable for the fault committed by the concerned authorities who were responsible for granting the increments to the petitioner. 9. In such circumstances, the impugned order of the third respondent, dated 11.9.96, made in Na.Ka.No.109/96, seeking to recover the increments paid to the petitioner is liable to be set aside, as it has been passed without issuing the necessary notice to the petitioner and without giving an opportunity to put forth her case. Further, it is not the case of the respondents that the increments had been granted to the petitioner based on her misrepresentation or fraud. Therefore, the impugned order of the third respondent, dated 11.9.96, is set aside. 10. However, with regard to the impugned order, dated 29.8.96, passed by the second respondent, in Na.Ka.No.15171/A5/96, the petitioner is permitted to make a representation to the second respondent to re-consider the said impugned order, after giving an opportunity to the petitioner to put forth her case, within a period of four weeks from today and on such representation being made by the petitioner, the second respondent is directed to pass appropriate orders thereon, on merits and in accordance with law, within a period of twelve weeks thereafter. 11. In view of the order passed by this Court, setting aside the impugned order of recovery, dated 11.9.96, made in Na.Ka.No.109/96, passed by the third respondent, the withheld benefits due to the petitioner are to be disbursed, within a period of twelve weeks from the date of receipt of a copy of this order. Accordingly, the writ petition is partly allowed, to the extent noted above. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ csh To 1.The Director of School Education, Madras-6. 2.The District Educational Officer, Seranmahadevi, Tirunelveli Kattabomman District. 3.The Headmaster, Government Higher Secondary School, Panagudi, Tirunelveli Kattabomman District. + 1 CC To Mr.S.Mani, Advocate SR NO.32364 Writ Petition No.27002 of 2006 DM(CO) SRA(27/08/2008) https://hcservices.ecourts.gov.in/hcservices/