AI Structured Summary
Not yet generated for this judgment
Judgment
M. Jaichandren, J.—Heard the learned Counsel appearing for the petitioner and the learned Additional Government Pleader appearing for
the respondents.
It has been stated that the petitioner had joined as an Assistant Teacher at Thanjapuram, Radhapuram Panchayat Union School, Tirunelveli
District, on 16.11.1970. Subsequently, he had been transferred as an Assistant Teacher to Radhapuram Union and Pozhal Union. Thereafter, he
had been transferred and posted as an Assistant Teacher at Tiruvottiyur Municipal Primary School. Since he had acquired an M.A.Degree in the
year 1994 and B.Ed., degree in the year 1996, he was given certain benefits and privileges, including an incentive increment, with effect from
27.9.1996, like those of the post graduate teachers, who had obtained their qualifications from regular university courses. However, by the
impugned order, the second respondent had issued directions to recover the incentive increments, which had been paid to the petitioner, with effect
from 27.9.1996, in accordance with the relevant rules applicable to such appointments. In such circumstances, the petitioner has preferred the
present writ petition before this Court, under Article 226 of the Constitution of India.
No reply or counter affidavit has been filed on behalf of the respondents.
The recovery of the excess amount said to have been paid to the petitioner cannot be made, as held by this Court in its order, dated 27.6.2008,
made in W.P. No. 16150 of 2006 and as held in the following decisions:
4.1) In Shyam Babu Verma and Others Vs. Union of India (UOI) and Others, , 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.
4.2) 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.
4.3) 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.
4.4) 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.
4.5) 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.
4.6) 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.
4.7) In the decision of the Supreme Court, in State of Bihar and Others Vs. Pandey Jagdishwar Prasad, , it has been held that where due to
confusion in date of birth due to negligence and lapses on the part of the authorities due to which a service holder worked beyond his service
tenure and was paid for it, no deduction could be made for that period from the retiral dues.
4.8) 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.
4.9) 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.
4.10) 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 Counsel appearing on behalf of the petitioner, and in view of the decisions cited above, the
impugned order of the second respondent, passed in Na.Ka. No. 437530/A53/2000, dated 19.12.2000, is set aside, in so far as it relates to the
recovery of the amounts already paid to the petitioner, as increment. Accordingly, the writ petition is allowed, as noted above. No costs.