BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/12/2010 CORAM THE HON'BLE MR.JUSTICE K.CHANDRU W.P.(MD)No.10092 of 2007 and M.P(MD)No.2 of 2007 M.Kulandaivel .. Petitioner Vs. 1.The State of Tamil Nadu, the Secretary to Government, Education Department (Elementary) Chennai-9. 2.The Director of Elementary Education, College Road, Chennai-6. 3.The Chief Educational Officer, Karur. 4.The Principal Accountant General, Teynampet, Chennai-18. .. Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus, calling for the records on the file of the third respondent in connection with the orders passed by him in Na.Ka.No.3249/A1/04, dated 07.07.2004 and Na.Ka.No.13453/A1/04, dated 27.12.2004 and by the 4th respondent in Proc.No.AG(A&E) Pension 9/III/K113- 1347/Rtd/04-05/287, dated 24.12.2004 and also by the 2nd respondent in Na.Ka.48096/23/2005 dated 16.02.2007 and quash the same and direct the respondents to pay all the retirement benefits without any deduction with 18% interest per annum for the belated payment and with exemplary costs. !For Petitioner ... Mr.J.S.Murali ^For Respondents 1-3 ... Mr.S.C.Herold Singh, Government Advocate. For 4th Respondent ... Mr.P.Gunasekaran :ORDER
The petitioner has come forward to challenge the order of recovery, dated
27.12.2004 as well as the order of the second respondent dated 16.02.2007 and
after setting aside the same, he seeks for refund of the amount along with 18%
interest. The petitioner has also retired and drawing pension and in normal
circumstances, this Court in case of retirees had directed any recovery made
without notice to be set aside and also in appropriate cases granted a restraint
order from future recoveries.
2.In doing so, this Court relied upon the Supreme Court Judgment in Syed
Abdul Qadir Vs. State of Bihar reported in (2009) 3 SCC 475. The following
passage found in paragraphs 57 to 60 may be usefully reproduced below:
“57.This Court, in a catena of decisions, has granted relief against recovery of
excess payment of emoluments/allowances if (a) the excess amount was not paid on
account of any misrepresentation or fraud on the part of the employee, and (b)
if such excess payment was made by the employer by applying a wrong principle
for calculating the pay/allowance or on the basis of a particular interpretation
of rule/order, which is subsequently found to be erroneous.
58.The relief against recovery is granted by courts not because of any right in
the employees, but in equity, exercising judicial discretion to relieve the
employees from the hardship that will be caused if recovery is ordered. But, if
in a given case, it is proved that the employee had knowledge that the payment
received was in excess of what was due or wrongly paid, or in cases where the
error is detected or corrected within a short time of wrong payment, the matter
being in the realm of judicial discretion, courts may, on the facts and
circumstances of any particular case, order for recovery of the amount paid in
excess. See Sahib Ram v. State of Haryana1, Shyam Babu Verma v. Union of India2,
Union of India v. M. Bhaskar3, V. Gangaram v. Director4, Col. B.J. Akkara
(Retd.) v. Govt. of India5, Purshottam Lal Das v. State of Bihar6, Punjab
National Bank v. Manjeet Singh7 and Bihar SEB v. Bijay Bhadur8.
59.Undoubtedly, the excess amount that has been paid to the appellant teachers
was not because of any misrepresentation or fraud on their part and the
appellants also had no knowledge that the amount that was being paid to them was
more than what they were entitled to. It would not be out of place to mention
here that the Finance Department had, in its counter-affidavit, admitted that it
was a bona fide mistake on their part. The excess payment made was the result of
wrong interpretation of the Rule that was applicable to them, for which the
appellants cannot be held responsible. Rather, the whole confusion was because
of inaction, negligence and carelessness of the officials concerned of the
Government of Bihar. Learned counsel appearing on behalf of the appellant
teachers submitted that majority of the beneficiaries have either retired or are
on the verge of it. Keeping in view the peculiar facts and circumstances of the
case at hand and to avoid any hardship to the appellant teachers, we are of the
view that no recovery of the amount that has been paid in excess to the
appellant teachers should be made.
60….. Since we have directed that no recovery of the excess amount be made
from the appellant teachers and in order to maintain parity, it would be in the
fitness of things that the amount that has been recovered from the teachers
should be refunded to them.”
2.But in the present case, the petitioner earlier got a remittal order for
fresh consideration. After remand, the order impugned came to be passed. In
justification of the order, in Paragraph 20 of the counter affidavit filed by
the third respondent, dated ‘nil’ (February 2008), it was averred as follows:
“20.I state that in pursuant to the above orders, this Respondent had been
inclined to take action to find out the errant official who committed the
chronicle misleadings on the issue of retrospective irregular pay fixation. On
the perusal of the previous records maintained in the previous stations,
situated in Trichy District where the petitioner had served, this respondent had
digged out a new can of worms, severely damaged the image and creditability of a
Government Servant and the teaching community. Further it is pain to note that
the erroneous pay fixation was made on 19.01.1996 (with retrospective effect
from 01.06.1988) only by the petitioner himself when he was working as in charge
Headmaster of Government Girls High School, Thuvaranguruchi, Trichy District. To
crown it all, the petitioner had committed the above mistake on 19.01.1996 by
forging the signature of the regular Headmistress (Tmt Mangayarkarasi) in all
fixation proceedings, service register, and also in Treasure Records (MTC.70)
when she was on medical leave from 4.01.1996 to 26.02.1996. By forged the
signature of the higher authority, the petitioner had proved himself as guilty
of criminal offence. Due to the action taken by the Department after knowing the
insidious commitments, the petitioner had remitted back the arrear salary of
Rs.74432/- drawn by him. Subsequently, he was transferred to another stations
and where also he managed to get the continual irregular excessive pay by his
own interpretations and instigations. Copy of papers which prove the
surreptitious roll staged by the petitioner have been attached with this counter
affidavit. Hence the errant officer was the only petitioner who committed such
unruling pay fixation in the post of Headmaster”.
3.As per the counter affidavit, it was the petitioner who was responsible
for the wrong fixation and he cannot take advantage of his own wrong. Therefore,
the petitioner do not come within the exception pointed out by the Supreme Court
in Syed Abdul Qadir’s case (cited supra). Hence, the writ petition stands
dismissed. No costs. Consequently, connected miscellaneous petition stands
closed.
sms
To
1.The State of Tamil Nadu,
the Secretary to Government,
Education Department (Elementary)
Chennai-9.
2.The Director of Elementary Education,
College Road,
Chennai-6.
3.The Chief Educational Officer,
Karur.
4.The Principal Accountant General,
Teynampet,
Chennai-18.