In the High Court of Judicature at Madras Dated: 03-11-2008 Coram: The Honourable Mr.Justice M.JAICHANDREN W.P.No.662 of 2003 V.Viswanathan .. Petitioner. Versus The Tamilnadu Civil Supplies Corporation Ltd., Rep. by its Chairman cum Managing Director, 42, Thambuswamy Road, Chennai-10. .. Respondent. Prayer: Petition filed seeking for a writ of Certiorarified Mandamus, calling for the records relating to the proceedings Rc.No.E8/109053/95(NLG), dated 19.2.2003, of the respondent herein, quash the same and consequently directing the respondent not to disturb the petitioner from the post of Grade II Mechanic. For Petitioner : Mr.V.Sanjeevi For Respondent : Mr.V.Selvanayagam O R D E R
Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
2. Initially, the petitioner has filed the present writ petition praying for a writ of Certiorarified Mandamus, to call for the records relating to the proceedings Rc.No.E8/109053/95(NLG), dated 19.12.2002, passed by the respondent herein, quash the same and consequently, direct the respondent not to disturb the petitioner from the post of Grade II Mechanic. Subsequently, the petitioner has filed a petition in W.P.M.P.No.12025 of 2003, seeking for an amendment of the said prayer. This Court by its order, dated 7.10.2003, had allowed the said petition and amended the prayer as follows:
“to issue a writ of Certiorarified Mandamus, calling for the records relating to the proceedings Rc.No.E8/109053/95(NLG), dated 19.2.2003, of the respondent herein, quash the same and consequently directing the respondent not to disturb the petitioner from the post of Grade II Mechanic.”
3. It has been submitted that the petitioner was working as Mechanic Grade-II, under the respondent. However, he has been reverted to the post of Packer, with retrospective effect, from 6.1.2000. The writ petitioner had challenged the reversion, as well as the cancellation of the order appointing the petitioner as Grade-II Mechanic, with effect from 6.1.2000.
4. At this stage of the hearing of the writ petition, the learned counsel appearing for the petitioner had submitted that the petitioner is not challenging the impugned proceedings relating to his appointment as Mechanic Grade-II and the consequential reversion to the post of Packer. However, the learned counsel appearing for the petitioner had submitted that the impugned proceedings, dated 19.2.2003, in proceedings No.Rc.No.E8/109053/95(NLG), in so far as it relates to the recovery of the differential payment of salary paid to the petitioner in the higher scale of pay of Rs.3050-75-3950-80-4590, fixed for Grade-II Mechanic, instead of the payment of salary in the scale of pay of Rs.2550-55-2660-60-3200, fixed for Packer cadre, with effect from the date of his appointment, i.e. 6.1.2000, is arbitrary, illegal and void.
5. The learned counsel appearing for the petitioner had further submitted that there was no suppression or misrepresentation on the part of the petitioner based on which the higher salary had been paid to the petitioner as Grade-II Mechanic.
6. The learned counsel appearing on behalf of the respondent has not been in a position to show that the higher scale of pay, paid to the petitioner as Grade-II Mechanic, has been paid to the petitioner due to the fraud or misrepresentation of the petitioner. However, the learned counsel appearing for the respondent has submitted that there is no post of Mechanic Grade-II in the respondent Corporation. Therefore, the scale of pay of Mechanic Grade-II cannot be paid to the petitioner.
8. The following decisions, relating to the recovery of excess amounts paid to the employees, are in favour of the petitioner in the present writ petition.
8.1) 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.
8.2) 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.
8.3) 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.
8.4) 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.
8.5) 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.
8.6) 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.
8.7) 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.
8.8) 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.
8.9) 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.
9. In view of the submissions made by the learned counsel appearing on behalf of the petitioner, as well as the respondent, this Court is of the considered view that the amount of Rs.33,050/-, paid to the petitioner in the scale of pay of Mechanic Grade-II, cannot be recovered since the said amount has been paid to the petitioner, as he has been actually working in the said post. Further, there has been no misrepresentation or fraud on the part of the petitioner, based on which the said amount had been paid to him
10. In such circumstances, the impugned proceedings of the respondent, dated 19.2.2003, is set aside in so far as it relates to the recovery of the amount of Rs.33,050/-, said to have been paid to the petitioner, as excess amount. However, since the said amount has already been recovered from the petitioner, it is to be re-paid to the petitioner by the respondent Corporation, within a period of eight weeks from the date of receipt of a copy of this order.
The writ petition is disposed of with the above directions. No costs.
csh
To
The Chairman cum Managing Director
The Tamilnadu Civil Supplies Corporation
42, Thambuswamy Road,
Chennai 10