IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 06-07-2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.5027 of 2007 (O.A.No.3114 of 2001) A.Shajatha Shareef .. Petitioner Versus 1. Superintending Engineer, Public Works Dept-WRO, Pennar Basin Circle, Thiruvannamalai. 2.Executive Engineer, Public Works Dept-WRO, Lower Pennar Basin Divn. Villupuram. 3.Asst. Executive Engineer, Public Works Dept-WRO, Lower Pennar Basin Sub-Divn. Thirukkovilur. .. Respondents. Prayer: Original Application No.3114 of 2001 filed before the Tamil Nadu Administrative Tribunal, on abolition, transferred to the file of this Court and renumbered as Writ Petition No.5027 of 2007, seeking for a writ of Certiorari to call for the records of the respondents in connection with the impugned order passed by the 2nd respondent in proceedings No.919/2000/Atchi 1 dt 18.4.2001, and quash the same. For Petitioner : Mr.K.Venkatramani Senior Advocate for T.M.Ayngara Prabhu For Respondent : Ms.S.Anitha Government Advocate O R D E R Heard the learned counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents. 2. It has been stated that the petitioner had been appointed as a Head Mazdoor in the respondent Department, through the employment https://hcservices.ecourts.gov.in/hcservices/ exchange. At the time of the appointment of the petitioner there were no adhoc rules for the post of Head Mazdoor. The petitioner had passed S.S.L.C with bifurcated engineering course in the year 1972, which is the essential qualification for the post of Work Inspector Grade-II, as per the special rules enacted by the Government, in G.O.M.s.No.461, Public Works Department, dated 15.3.1980. 3. It has been further stated that the adhoc rules for the post of Head Mazdoor had been enacted, on 15.3.1980, with retrospective effect, from 7.5.1966. The petitioner, on completion of 10 years of service, as a Head Mazdoor, had been promoted as Work Inspector Grade-II. Pursuant to the representations made by the petitioner and the order passed by the Tamil Nadu Adminstrative Tribunal, in O.A.No.853 of 2000, the petitioner had been promoted as Work Inspector Grade-I from 16.3.1998 and the monetary benefits had been granted to him by Proceedings No.919/2000/N.A., dated 13.3.2000. However, the impugned order, dated 18.4.2001, had been issued to recover the amounts paid to the petitioner, as salary and other benefits, based on audit objections raised by the office of the Accountant General. The excess amount said to have been paid was ordered to be recovered from the salary of the petitioner from the month of April, 2001. The earlier order, dated 13.3.2000, had been cancelled stating that the designation of the petitioner as Work Inspector Grade-I was incorrect. 4. The main contentions of the learned counsel for the petitioner are that the impugned order, dated 18.4.2001, had been passed without any notice having been issued to the petitioner and without giving him an opportunity to put forth his case. Even though the petitioner was fully qualified for the post of Work Inspector Grade-I, the impugned order had been passed, based on the objections raised by the Accountant General. Further, proper reasons have not been given in the said impugned order. No recovery can be made from the salary of the petitioner, since such payments were made not based on the misrepresentation or fraud committed by the petitioner. 5. Based on the reply filed, the learned counsel appearing on behalf of the respondents had submitted that the impugned order, dated 18.4.2001, had been passed by the second respondent, based on the audit objections raised by the Accountant General, stating that the petitioner was not qualified to be promoted to the post of Work Inspector Grade-I. Therefore, the excess salary paid to the petitioner, in view of the promotion granted to him, had to be recovered from him. 6. The learned counsel appearing on behalf of the respondents had not been in a position to show that a prior notice had been issued to the petitioner before the passing of the impugned order, dated 18.4.2001. It has also not been shown that the petitioner had been given an opportunity to put forth his case. Further, sufficient reasons have not been shown in the impugned order to justify the action against the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 7. Further, 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: 4.1) 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 received the higher scale of pay due to no fault of theirs. 4.2) 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. 4.3) 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. 4.4) 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. 4.5) 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. 4.6) 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. 4.7) In the decision of the Supreme Court, in State of Bihar and Ors Vs. Pandey Jagdishwar Prasad (2008(1) UJ 197 (SC), it has been held that where due to confusion in date of birth due to negligence and lapses on the part of the authorities due to which a service holder worked beyond his service tenure and was paid for it, no deduction could be made for that period from the retiral dues." https://hcservices.ecourts.gov.in/hcservices/ 4.8) 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. 4.9) 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. 4.10) 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 such circumstances, this Court is of the considered view that the impugned order of the second respondent, dated 18.4.2001, cannot be sustained in the eye of law. Accordingly, the impugned order of the second respondent is set aside, in so far as it relates to the recovery of the salary and other emoluments paid to the petitioner. 9. However, it is open to the respondents to take appropriate action concerning his promotion to the post of Work Inspector Grade- I, and with regard to the re-fixation of his salary and other emoluments due to him, in accordance with law, after giving sufficient opportunity to the petitioner to put forth his case. The writ petition stands allowed with the above directions. No costs. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar csh https://hcservices.ecourts.gov.in/hcservices/ To 1. Superintending Engineer, Public Works Dept-WRO, Pennar Basin Circle, Thiruvannamalai. 2.Executive Engineer, Public Works Dept-WRO, Lower Pennar Basin Divn. Villupuram. 3.Asst. Executive Engineer, Public Works Dept-WRO, Lower Pennar Basin Sub-Divn. Thirukkovilur. +1 cc to Mr.T.Ayngaraprabhu, Advocate, SR.No.29577 2 cc To The Government Pleader, SR.26118 and 28997 Writ Petition No.5027 of 2007 KU {CO} TP/21.7.2009. https://hcservices.ecourts.gov.in/hcservices/