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Judgment
M. Jaichandren, J.—Heard the learned Counsels appearing for the parties concerned.
It is submitted by the learned Counsel appearing for the petitioners that the petitioners had been employed in various posts in the Government
Engineering College, Salem. The pay scales of the petitioners had been revised, based on the Government order, in G.O.Ms. No. 739, Finance
Department, dated 18.12.1996. However, the third respondent had issued the impugned order seeking to recover the amounts paid as salary to
the petitioners without issuing any notice to them and without giving them an opportunity to putforth their cases.
No counter affidavit has been filed denying the statements made by the learned Counsel appearing for the petitioners.
The main contention of the learned Counsel for the petitioners is that no prior notice had been issued to the petitioners before the impugned
order had been passed. Further, there was no misrepresentation or fraud committed by the petitioners, based on which the refixation of the
petitioners'' scale of pay was done.
The learned Counsel has also submitted that in similar circumstances, this Court had set aside the orders issued by the concerned authorities
attempting to recover the amounts paid as salary, increments and other allowances.
The learned Government Advocate appearing for the respondents had not refuted the contentions raised on behalf of the petitioners.
The following decisions, relating to the recovery of excess amounts paid to the employees, are in favour of the petitioners in the present writ
petition.
10.1) In Purshottam Lal Das and Others Vs. The State of Bihar and Others, , 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.
10.2) The Supreme Court, in Bihar State Electricity Board and Anr. v. Bijay Bahadur and Anr. 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.
10.3) In Union of India and Others Vs. Rekha Majhi, , 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.
10.4) The Supreme Court, in Sahib Ram Vs. State of Haryana and Others, 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.
10.5) In the decision of the Supreme Court in Babulal Jain Vs. State of M.P. and Others, , 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.
10.6) In the decision of a Division Bench of this Court in P. Arumugam v. 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.
10.7) In D. Palavesamuthu v. 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.
10.8) In Kanthimathi, S.A. v. 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.
In view of the submissions made by the learned Counsels appearing on behalf of the parties concerned and in view of the decisions rendered by
the Courts of law and on a perusal of the records available before this Court, it is clear that the excess amounts said to have been paid to the
petitioners is not due to any misrepresentation or fraud on the part of the petitioners. Further, no notice had been issued to the petitioners to put
forth their cases before the impugned order of recovery had been passed. The petitioners cannot be held liable for the fault committed by the
concerned authorities, who were responsible for fixing the scale of pay of the petitioners.
In such circumstances, the impugned orders issued by the third respondent in proc. No. 7409/C2/99-1, dated 26.9.2000, insofar as it seeks to
recover the excess amounts paid to the petitioners, is liable to be set aside, as it has been passed without issuing the necessary notice to the
petitioners and without giving them an opportunity to put forth their cases. Further, it is not the case of the respondents that the excess amount had
been granted to the petitioners based on their misrepresentation or fraud. However, it is open to the respondents to refix the scales of pay, in
accordance with the rules and the Government orders applicable to the petitioners, after giving them an opportunity of being heard. Accordingly,
the writ petition stands allowed to the extent noted above. No costs.