S THANGAVEL Vs. DIRECTOR OF AGRICULTURE CHEPAUK CHENNAI

JUDGEMENT

(1.) THE petitioner had joined as a laboratory assistant, on 24.11.1978. THEreafter, he was promoted as a Junior Assistant, on 7.8.1987. THE Fifth Pay Commission was constituted, and on the basis of its recommendations, the Tamil Nadu Revised scale of pay Rules, 1989, was issued. A number of anomalies came to be noticed at the time of pay fixation. In order to rectify the anomalies, the Government had issued an order, in G.O.Ms.No.57, Finance Department, dated 28.1.1991. Based on the said Government Order, the pay of the petitioner had been revised by the second respondent, by his order, dated 25.10.1998. THE reason for the revision of the scale of pay of the petitioner was that, on the date when he was promoted as a junior assistant, he was getting a higher scale of pay at Rs.645/-, in the cadre of laboratory assistant. On promotion, he was directed to take the pay at Rs.610/-, which is lesser than the scale of pay, that was given to him on his promotion, on 7.8.1987, in the cadre of laboratory assistant.

(2.) IT has been further stated that, on 1.9.2004, the petitioner had been further promoted as an assistant. While so, a show cause notice had been issued to him, on 14.10.2005, by the third respondent, calling for an explanation as to why the recovery should not be made from his salary, based on the audit objection. Even though the petitioner had submitted an explanation, on 14.10.2005, and the second respondent had forwarded the representation of the petitioner, along with his remarks, to the first respondent, no further orders had been passed. In such circumstances, the petitioner had preferred the present writ petition before this Court, under Article 226 of the Constitution of India.

(3.) 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. 5.1) In PURSHOTTAM LAL DAS Vs. STATE OF BHIAR ((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. 5.2) 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. 5.3) 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. 5.4) 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. 5.5) 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. 5.6) 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. 5.7) 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. 5.8) 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.