M.S. Rajendran vs The Chairman, The Chief Engineer (personnel), The Superintending Engineer and The Executive Engineer, Tamil Nadu Electricity Board

M. Venugopal, J.—The Petitioner has filed the present Writ Petition seeking the relief of Writ of Mandamus to direct the Respondents to

repay a sum of Rs. 38,648/- (Rupees thirty eight thousand six hundred and forty eight only) to the Petitioner, which has already been recovered

from the salary of the Petitioner as an excess pay received by him, in view of wrong fixation of the salary.

The Petitioner served in the Indian Air Force and retired from service on 30.07.1987. He was appointed as Helper in Tamil Nadu Electricity

Board by the third Respondent on 22.02.1989. While he was in service in Indian Air Force, he was awarded with Diploma graduation by the

authorities. By taking into account of his Diploma qualification, the second Respondent, by means of internal selection, has appointed the Petitioner

as Technical Assistant-II by an order dated 23.01.1993. Earlier, the Petitioner''s salary has been fixed for the post of Technical Assistant at Rs.

1080/- (Rupees one thousand and eighty only) as basic salary. Subsequently, as per B.P.5, his salary was revised to Rs. 1250/- (Rupees one

thousand two hundred and fifty only) by means of an order dated 11.3.1993. He was paid with arrears of salary. Subsequently, within one year,

again the salary has been revised to Rs. 1385/- (Rupees one thousand three hundred and eight five only) as per B.P. No. 349 dated 19.12.1994

and the arrears salary has been paid to the Petitioner.

The case of the Petitioner is that he has been promoted as Junior Engineer Grade-II from Technical Assistant on 30.11.2002. In the meantime,

Technical Assistant Grade-II and Grade -I posts were merged. When the Petitioner has been serving at Rajapalayam Sub Station, where he has

been working now, the Tamil Nadu Electricity Board has conducted audit and as per audit slip No. 21, dated 25.04.2003, an objection has been

raised that his salary ought to be fixed at Rs. 1250/- (Rupees one thousand two hundred and fifty only) not at Rs. 1385/- (Rupees one thousand

three hundred and eight five only). Subsequently, an excess salary of Rs. 34,120/- (Rupees thirty four thousand one hundred and twenty only) has

been paid by the Petitioner, which has been directed to be recovered from his monthly salary.

Placing reliance on the audit objection, the Executive Engineer, Tamil Nadu Electricity Board, Aruppukottai, by an order dated 17.6.2003

ordered a recovery of a sum of Rs. 1800/- (Rupees one thousand and eight hundred only) per month from the salary commencing from February

2004. The Electricity Board has recovered a sum of Rs. 38,648/- (Rupees thirty eight thousand six hundred and forty eight only) from the

Petitioner''s salary till April 2005.

According to the learned Counsel for the Petitioner, the Respondents ought to recover only Rs. 34,120/- (Rupees thirty four thousand one

hundred and twenty only) as per audit objection. But, they have recovered more than Rs. 4000/- (Rupees four thousand only) from the salary of

the Petitioner.

The Petitioner lost his son, who died of cancer and therefore, the Petitioner later approached the Respondents as to why the recovery has been

affected from his salary. In the meanwhile, the entire amount has already been recovered. Further, the Petitioner has sent various representations to

the Electricity Board and the said representations have not been considered by the Respondents. However, the third Respondent by virtue of his

letter, dated 3.5.2005, has issued a reply mentioning that since the amount has already been recovered as per the audit objection, they are helpless

in the matter in issue.

It transpires from the typed set of papers filed by the Petitioner that his revised scale of pay in the cadre of Technical Assistant Grade-II has

been fixed at Rs. 1385/- (Rupees one thousand three hundred and eight five only) with effect from 11.03.1993 F.N. and Rs. 1430/- (Rupees one

thousand four hundred and thirty only) with effect from 01.01.1994 F.N. and Rs. 1475/- (Rupees one thousand four hundred and seventy five

only) with effect from 01.01.1995 F.N. and the Executive Engineer has issued the said revised scale of pay proceedings.

The learned Counsel for the Petitioner, at this juncture, points out that the Petitioner has been promoted to Junior Engineer Grade-II from the

post of Technical Assistant on 30.11.2002. In the meantime, the Technical Assistant Grade-II and Grade -I posts got merged. Therefore, the

revised scale pay has become imminent. As such, the Executive Engineer/Tamil Nadu Electricity Board has issued revised scale of pay fixation

order dated 26.04.1995, for which the Petitioner is not any way responsible.

In common law, an action for recovery of money unduly received is an useful instrument to prevent an unjust enrichment. The expression ''unjust

enrichment'' is coming within the purview of Section 72 of Indian Contract Act, 1872.

An average employee is expected to consume his pay packet in satisfying the daily needs of his family and in self. If by mistake an employer

makes over payment and such mistake has not occurred on account of his inducement by any representation from the employee and there is some

lapse of time before the mistake is found out, then an excess payment or over payment cannot be recovered from the employee.

Even otherwise, recovery from an employee''s pay is a civil consequence and no recovery is permissible on account of the mistaken over

payment without any reasonable opportunity being provided to the delinquent.

In Shaib Ram v. State of Haryana 1994(5) S.L.R. at page 753 where there was a mistake in the fixation of pay scale of the Appellant, it is

held as follows:

It is not on account of his misrepresentation made by the Appellant and that the benefit of higher pay was given to him. But by wrong construction

made by the principle for which the Appellant cannot be held to be at fault.

Under the circumstances, amount paid till date may not be recovered from the Appellant.

In Union of India v. Ram Gopal Agarwal 1998(2) SCC at page 589, noticing the recovery order caused hardship, the Hon''ble Supreme

Court held that ""such recovery cannot be effected"".

As far as the present case is concerned, the Petitioner is not any way responsible in regard to the fixation of revised scale of pay dated

26.4.1995, which has admittedly been fixed in the cadre of Technical Assistant Grade-II by the Executive Engineer, Tamil Nadu Electricity Board.

The revised scale of pay fixation order has been determined on 26.4.1995. However, the Executive Engineer, Distribution, Aruppukkottai, by his

proceedings dated 17.6.2007 addressed to the Petitioner has informed that as per audit No. 21 dated 25.4.2003 a sum of Rs. 34,120/- (Rupees

thirty four thousand one hundred and twenty only) will be recovered from the Petitioner''s salary because of the difference in pay at the time of

fixation of salary.

The learned Counsel for the Petitioner urges before this Court that the recovery order dated 17.6.2003 issued by the Executive Engineer,

Distribution, Aruppukkottai, is in negation of the principles of natural justice because of the simple fact that no opportunity has been provided to

the Petitioner before passing of the impugned order in effecting recovery to a sum of Rs. 34,120/- (Rupees thirty four thousand one hundred and

twenty only) and further, in pursuance of the impugned order dated 17.6.2003 of the Executive Engineer of Distribution, Aruppukkottai, a sum of

Rs. 1,800/- (Rupees one thousand eight hundred only) has been deducted from the Petitioner''s salary, which is not correct in law. Also, it is the

case of the Petitioner that an excess amount of more than four thousand has been recovered from him.

It is not in dispute that the Executive Engineer, Distribution, Aruppukkottai, by his proceedings dated 17.6.2003 addressed to the Petitioner

has informed the Petitioner that a sum of Rs. 34,120/- (Rupees thirty four thousand one hundred and twenty only) will be deducted from his salary

because of wrong fixation of his salary in revised scale of pay. For wrong fixation of the Petitioner''s salary by the Executive Engineer of Tamil

Nadu Electricity Board dated 26.4.1995 the Petitioner cannot be found fault with. No opportunity has been provided to the Petitioner to raise his

objection in regard to the audit claim dated 25.4.2003 and the subsequent recovery order was passed by the Executive Engineer, Distribution,

Aruppukkottai. Even the copy of the audit report and the proceedings have not been furnished to the Petitioner. As a matter of even in the

recovery order dated 17.6.2003 issued by the Executive Engineer, Distribution, Aruppukkottai, there is no qualitative or quantitative detail or

breakup detail in regard to the recovery of Rs. 34,120/- (Rupees thirty four thousand one hundred and twenty only). To put it precisely, an outline

of details of breakup figures for Rs. 34,120/- (Rupees thirty four thousand one hundred and twenty only) or a working sheet to that effect has not

been issued to the Petitioner also.

In view of the fact that the Petitioner has not been provided with a reasonable opportunity being heard as regards the objection raised by the

audit slip No. 21 dated 25.4.2003 and also, in regard to the recovery order dated 17.6.2003 passed by the Executive Engineer, Distribution,

Arupplukkottai and also this Court taking not of an important fact that the Petitioner is not any way responsible for wrong fixation of his revised

scale of pay as per proceedings dated 26.4.1995 issued by the Executive Engineer, Tamil Nadu Electricity Board and also this Court taking note

of overall assessment and the facts and circumstances of the case in an integral fashion which float on the surface, this Court comes to an inevitable

conclusion that the recovery order dated 17.6.2003 passed by the Executive Engineer, Distribution, Aruppukkottai claiming a sum of Rs. 34,120/-

(Rupees thirty four thousand one hundred and twenty only) is not correct in the considered opinion of this Court.

Further, in as much as the Respondents have effected a recovery of a sum of Rs. 38,648/- (Rupees thirty eight thousand six hundred and forty

eight only) which is more than the amount actually to be recovered, namely, Rs. 34,120/- (Rupees thirty four thousand one hundred and twenty

only) (in reality, an excess of more than Rupees four thousand has been recovered) As such, this Court on the basis of Fair Play, Equity, Good

Conscience and even as a matter of Prudence directs the Respondents to pay a sum of Rs. 38,648/- (Rupees thirty eight thousand and six hundred

and forty eight only) to the Petitioner within a period of two months from the date of receipt of copy of this order. Accordingly, the Writ succeeds.

In the result, the Writ petition is allowed leaving the parties to bear their own costs. Since, the order of recovery dated 17.6.2003 issued by

the Executive Engineer, Distribution, Aruppukkottai is set aside.