IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.02.2011 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.Nos.12812,12813,12814,12815,12816 and 12817 of 2009 and M.P.Nos.1,1 of 2009, 2,2 of 2009 and 3,3 of 2009 P.Gophi .. Petitioner in W.P.No.12812 of 2009 L.Harikrishnan .. Petitioner in W.P.No.12813 of 2009 A.Jayakumar .. Petitioner in W.P.No.12814 of 2009 V.Anandhan .. Petitioner in W.P.No.12815 of 2009 B.Sasikala .. Petitioner in W.P.No.12816 of 2009 M.Indira .. Petitioner in W.P.No.12817 of 2009 Vs. 1. The State of Tamilnadu Rep. by its Secretary to Government Information and Technology Department Fort St.George, Chennai-600 009. 2. The Managing Director Electronics Corporation of Tamil Nadu Ltd., (ELCOT), 692 Anna Salai, Nandanam Chennai-600 035 .... Respondents in all the petitions Prayer: Writ petitions filed under Article 226 of Constitution of India for the issuance of writ of Certiorarified Mandamus calling for records on the file of the 2nd respondent relating to the order issued in COM/O/C/2007 dated 02.07.2009 and quash the same and direct the respondents to promote the petitioner to the post of Deputy Manager II w.e.f 23.05.2005 as per the orders passed by the 2nd respondent in Pr.C.No.PER/A1/2790/05 dated 28.05.2005 with all consequential benefits. For Petitioners in all W.Ps : Mr.Karthik Mukundan For Respondents : Mr.B.Vijay, Govt. Advocate for R1 Mr.John for M/s.T.S.Gopalan & Co for R2 *****
C O M M O N O R D E R
The petitioners in these writ petitions have challenged the order passed by the Managing Director, Electronics Corporation of Tamil Nadu Ltd., (ELCOT), ordering that the financial benefits arising out of irregular promotion, additional increments and selection grade availed by the petitioner shall be recovered from them. The impugned order passed in W.P.No.12812 of 2009 reads as under:
“1.In the Government order cited, the employees of communication Division (Perungudi Unit) were brought out of wage settlement and brought under the Government pay scale and service rules of ELCOT with fixation benefits at the percentage noted in para 5 therein.
2) They were designate as Basic servant, Record clerk, Record Assistant, Junior Assistant, Assistant Driver and Superintendent as the case may be. They were brought under the service rule of ELCOT with effect from 01.06.2003. It was ordered that the above incumbents shall be brought under the service rule prescribing necessary qualification and necessary order issued by recruitment by transfer.
3) But in the proceedings second cited orders were issued promoting some of the employees belonging to the Communication Division (Perungudi Unit) as Deputy Manager II and Superintendents. Some of the employees were also sanctioned one or two increments with effect from 25.02.2008 in addition to their promotion.
4) As there were anomalies in the fixation of pay between the communication division (Perungudi Unit) employees and the Corporate Office employees because of the position mentioned in para 3 above, the matter was examined in detail especially with reference to the position indicated in para 3 of the Government order cited.
5) After careful consideration of the entire issue and in supersession of the proceeding referred to in the reference second cited and all other related proceedings, it has been decided to bring all the employees of Communication Divisiion (Perungudi Unit) to the position obtained on 01.06.2003 and arrive at their seniority on that date for the purpose of their future service benefits with effect from 01.06.2003.
6) Accordingly the employees of Communication Division (Perungudi Unit) are appointed to the respective posts they were holding as on 01.06.2003 by recruitment by transfer in the Corporate Office consisting of various branches with reference to the seniority already arrived at the Communication Division on 01.06.2003. Based on this the revised seniority list of Corporate office and Communication Division (Perungudi Unit) has been arrived with effect from 01.06.2003 as found in the annexure to this proceeding.
7) The Communication Division (Perungudi Unit) employees are eligible to have their consequential benefits with effect from 01.06.2003.
8) It is also hereby ordered that the financial benefits out of irregular promotion, additional increments and selection grade hitherto availed by the Communication Division (Perungudi Unit) employees shall be recovered from them appropriately.”
Similar orders have been passed against other petitioners. The learned counsel for the petitioner challenged the impugned order, by contending that no over act,misrepresentation or fraud is attributed to the petitioners, in respect of the payment said to have been received wrongly, which is sought to be recovered by impugned order.
2.This contention of the learned counsel for the petitioners finds support from the reading of the impugned order itself.
3. It is a well settled law, that the payment made to an employee even wrongly, cannot be recovered, unless over act, misrepresentation or fraud is attributed to the employee, qua receipt of amount, which is sought to be recovered.
4. The impugned order is against the settled law, therefore cannot be sustained in law.
5.Consequently, all the writ petitions are allowed, the impugned orders are set aside. No costs. Connected miscellaneous petitions are closed.
6. However, this order shall not be taken as bar to passing of appropriate order of refixing the salary with prospective effect in accordance with law.
10.02.2011
Index:Yes/No
Internet:Yes/No
kpr
To
1. The Secretary, State of Tamilnadu
Information and Technology Department
Fort St.George, Chennai-600 009.
2. The Managing Director
Electronics Corporation of Tamil Nadu Ltd.,
(ELCOT), 692 Anna Salai, Nandanam
Chennai-600 035
VINOD K.SHARMA,J.,
kpr
W.P.Nos.12812,12813,12814,
12815,12816 and 12817 of 2009
and M.P.Nos.1,1 of 2009,
2,2 of 2009 and 3,3 of 2009
10.02.2011