IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 07-07-2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.48338 of 2006 (O.A.No.892 of 2001) 1.S.Jacqueline Suseela 2.S.Prakasam (Work Shop Instructiors, Govt., Polytechnic, Trichy-22) 3.A.Ambigapathy 4.M.Krishnan 5.S.Ramasamy 6.N.Thangaraj (Lab Assistants, Alagappa Polytechnic, Karaidudi-4) 7.S.Krishnan 8.G.Subbaraman 9.K.Balaiyan 10.G.Sabarathinam 11.J.Muller (Working as Skilled Assistants Alagappa Polytechnic, Karaikudi-4) .. Petitioners. Versus 1.The Director of Technical Education, Guindy, Chennai-25. 2.The Principal, Govt., Alagappa Polytechnic, Karaikudi-630 004. 3.The Principal, Govt., Polytechnic, Trichy. .. Respondents. Prayer: Original Application No.892 of 2001 filed before the Tamil Nadu Administrative Tribunal, on abolition, transferred to the file of this Court and renumbered as Writ Petition No.48338 of 2006, seeking for a writ of Certiorari to call for the records on the file of the 2nd respondent in connection with the order passed by him in his Proc.Memo No.1714/A2/2000, dated 12.1.2001,and quash the same in so far as the petitioner is concerned. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr.R.Singaravelan For Respondents : Mr.V.Arun Additional Government Pleader O R D E R Heard the learned counsel appearing for the petitioners and the learned Additional Government Pleader appearing for the respondents. 2. This writ petition has been filed to call for the records relating to the order of the second respondent, dated 12.1.2001, in so far as it relates to the petitioners and to quash the same. 3. It has been stated that the petitioners have been working in the Government Polytechnic, Trichy, in various posts. While so, an order had been passed by the second respondent for the recovery of certain amounts alleged to have been paid to them, in excess, for the period from 1.6.1988 to 31.3.1992. The recovery was sought to be made from the salaries of the petitioners, with effect from 31.1.2001. 4. The main contention of the learned counsel for the petitioners is that no proper reasons had been given as to how the amounts paid to the petitioners were in excess, for the period from 1.6.1988 to 31.3.1992. No opportunity had been given to the petitioners before the impugned order had been passed. Since revision of the pay scales had been done by the Government of Tamilnadu, any revision in the pay scales of the petitioners could be done only by the State Government, after giving prior notice to the petitioners. In such circumstances, the impugned order of the second respondent, dated 12.1.2001, in Memo No.1714/A2/2000, is devoid of merits and therefore, it is liable to be set aside. 5. No reply affidavit has been filed on behalf of the respondents. The learned counsel appearing on behalf of the respondents has not been in a position to justify the impugned order by placing the relevant records before this Court. He has not been in a position to show as to how the impugned order of the second respondent, dated 12.1.2001, is sustainable in the eye of law. Further, it has not been shown that prior notice had been issued to the petitioners before the passing of the impugned order. 6. Further, the recovery of the excess amounts said to have been paid to the petitioners 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: https://hcservices.ecourts.gov.in/hcservices/ 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." 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 7. In view of the submissions made by the learned counsel appearing on behalf of the petitioners, and in view of the decisions cited above, the impugned order of the second respondent, in Memo No.1714/A2/2000, dated 12.1.2001, is set aside, in so far as it relates to the recovery of the amounts already paid to the petitioners, as salary. However, it is open to the respondents to regularise the scales of pay of the petitioners, in accordance with law, after affording a reasonable opportunity to the petitioners to put forth their case. Accordingly, the writ petition is allowed as noted above. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar csh To 1.The Director of Technical Education, Guindy, Chennai-25. https://hcservices.ecourts.gov.in/hcservices/ 2.The Principal, Govt., Alagappa Polytechnic, Karaikudi-630 004. 3.The Principal, Govt., Polytechnic, Trichy. 1 cc To The Government Pleader,29633 SR. 1 cc To Mr.R.Singaravelan, Advocate, SR.29268 Writ Petition No.48338 of 2006 mrd(co) pmk.31.7.2009 https://hcservices.ecourts.gov.in/hcservices/