1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:08.09.2011 CORAM: THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA and THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN WRIT APPEAL (MD) No.834 of 2011 and M.P.(MD)No.1 of 2011 1.The Managing Director, Tamil Nadu Water Supply and Drainage Board (TWAD), No.31, Kamaraj Road, Chepauk, Chennai -600 005. 2.The Joint Chief Engineer (General) Tamilnadu Water Supply and Drainage Board (TWAD), Head Office, Chennai – 5. 3.The Executive Engineer, Tamil Nadu Water Supply and Drainage Board (TWAD), Maintenance Division, Thoothukudi. 4.The Assistant Executive Engineer, Tamilnadu Water Supply and Drainage Board (TWAD) Maintenance Sub-Division, Manjaneerkayal, Thoothukudi District – 628 152. 5.The Assistant Engineer, Tamilnadu Water Supply and Drainage Board (TWAD), Maintenance Section III, Authoor, Thoothukudi District. :Appellants -Vs- S.Ganesan :Respondent Writ Appeal is filed under Clause 15 of the Letters Patent against the order of the Writ Court dated 25.03.2010 made in W.P.(MD)No.9373 of 2009. Prayer in WP.No.9373 of 2009:Writ Petition filed under article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records on the file of the third respondent is his proceedings o.Na.1/Vea NE 0003/2007, dated 27.2.2008 and quash the same as illea, incompetent and further direct the respondents 3,4 and 5 to refund the sum of Rs.49,478/- recovered from the petitioners retirement benefits onpursuant to the third respondent proceeding dated 27.2.2008 with an interest at the rate of 18% per annum. For appellants : Mr.M.Ajmal Khan JUDGMENT (Judgment of the Court was delivered by P.P.S.JANARTHANA RAJA, J) This Writ Appeal has been filed against the order of the Writ Court dated 25.03.2010 made in W.P.(MD)No.9373 of 2009. 2.The brief facts of the case are as follows:- A batch of 20 persons including the respondent herein was appointed under 20 MGD and 3 MGD Scheme as NMR under daily wage basis within the period between 1972 and 1975. Actually, the respondent herein was appointed under the said scheme as NMR on 4.6.1972. Subsequently, based on the https://hcservices.ecourts.gov.in/hcservices/ 2 proceedings of the first appellant dated 24.5.1980 in Proc.No.9055/EA2/80- 3/I, he was appointed as WCE under time scale basis on 26.5.1980 Subsequently, the above mentioned first appellant has regularised the service of the respondent from 23.10.1973. The respondent had been working till the superannuation. On 31.3.2008, he was superannuated from the service. At the time of superannuation, he was working as Maintenance Assistant (Selection Grade) under the third appellant. To a great surprise to the respondent, the second appellant by order dated 2.2.2008 cancelled the respondent's regularisation from 23.10.1973 but re-fixed the same as 18.9.1981. In consequence of the order of the second appellant, the third appellant herein initiated the proceedings by order dated 27.2.2008 wherein a direction was issued by the third appellant to the fourth and fifth appellants to recover excess pay of salary paid to the respondent over the period between 23.10.1973 and 18.9.1981. In view of the same, the appellants recovered a sum of Rs.49,478/- from the respondent's retirement benefit at the time of retirement. The said recovery was also made without proper notice. The respondent also made a representation on 17.10.2008 to the first appellant and the same is still pending before the first appellant. After hearing the arguments advanced by both sides, the Writ Court allowed the Writ Petition and held as follows:- "In such view of the matter, without going into the merits of the case, the impugned order of recovery stands set aside. Accordingly, the Writ Petition stands allowed, however, with liberty to the respondents to take necessary steps in accordance with law, if so advised. The respondents shall refund the amount, if there are no other legal impediments, within a period of four weeks from the date of receipt of a copy of this order. Consequently, the connected Miscellaneous Petition is closed. No costs." Aggrieved by that, the appellants have filed the present Writ Appeal. 3.Learned counsel appearing for the appellants submitted that the order passed by the Writ Court is wrong, illegal, without any basis and justification. Further, it was contended that the Writ Court ought to have dismissed the Writ Petition and appreciated that if pay was refixed inadvertently, the same could be rectified on the date of notice of such defect and if such defect was not rectified, it will lead to perpetuate illegality and also the order of the learned Judge is wrong in directing the appellants to refund the recovered amount. 4.Heard the counsel and perused the documents available on record The impugned order of recovery was passed by the appellants without giving opportunity to the respondent herein and also in consequence of the passing of the orders, the appellants also recovered the amount at the time of superannuation. Therefore, the learned Judge has correctly taken the view that the order passed by the appellants is not in accordance with law and hence, set aside the impugned order of recovery and the learned Judge has also given liberty to the appellants to take necessary steps in accordance with law if so advised. Learned Judge also directed the appellants to refund the amount within a period of four weeks from the date of receipt of the copy of the order. It is pertinent to note that the appellants recovered a sum of Rs.49,478/- from the respondent at the time of respondent's retirement. The respondent was also superannuated on 31.3.2008 https://hcservices.ecourts.gov.in/hcservices/ 3 There is no dispute that the respondent has not misrepresented or committed any fraud or mistake to obtain higher pay of salary. It is only a mistake on the part of the appellants. Therefore, the respondent should not be put into hardship by way of recovery. It is a well settled principle that no recovery of the amount of excess pay already paid to the employee can be ordered where there is no misrepresentation or suppression or fraud or mistake committed on the part of the employee. Further, in this case, the said recovery was made without even issuing show cause notice before passing the impugned order of the recovery. 5.After considering the overall view and the facts and circumstances of the case, this Court is of the considered view that the order passed by the Writ Court is in accordance with law. We do not find any error, infirmity or illegality in the order of the Writ Court warranting our interference. Further, the learned counsel appearing for the appellants also unable to bring to our notice any fresh material or evidence to take a contrary view of the order of the Writ Court. Therefore, the order of the Writ Court is confirmed and the Writ Appeal is dismissed. Consequently, M.P.(MD) No.1 of 2011 is closed. No costs. Further, the learned counsel appearing for the appellants requested the Court that the appellants may be granted six weeks' time from the date of receipt of a copy of the order to refund the amount. After considering the facts and circumstances of the case, we grant six weeks' time from the date of receipt of the copy of this order to the appellants to refund the recovered amount. Sd/- Assistant Registrar (Crl.side) / TRUE COPY / Sub Assistant Registrar To: 1.The Managing Director, Tamil Nadu Water Supply and Drainage Board (TWAD), No.31, Kamaraj Road, Chepauk, Chennai -600 005. 2.The Joint Chief Engineer (General) Tamilnadu Water Supply and Drainage Board (TWAD) Head Office, Chennai – 5. 3.The Executive Engineer, Tamil Nadu Water Supply and Drainage Board (TWAD), Maintenance Division, Thoothukudi. 4.The Assistant Executive Engineer, Tamilnadu Water Supply and Drainage Board (TWAD) Maintenance Sub-Division, Manjaneerkayal, Thoothukudi District – 628 152. 5.The Assistant Engineer, Tamilnadu Water Supply and Drainage Board (TWAD), Maintenance Section III, Authoor, Thoothukudi District. +1CC to Mr.M.Ajmalkhan, Advocate. SR.No.31015. (asvm) WA(MD)No.834 of 2011 and MP(MD)No.1 of 2011 RP/26.09.2011/3P/7C. 8.9.2011 https://hcservices.ecourts.gov.in/hcservices/