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Judgment
Honourable Mr. Justice T. Raja
This writ petition has been filed by S. Arockia Samy for the issuance of a Writ of Certiorarified Mandamus calling for the records relating to the impugned order in R.C. No. 3533/A4/2008, dated 20.09.2011 on the file of the first respondent and quash the same as illegal and unsustainable and consequently direct the first respondent to refund Rs.2,958/-as deducted from his salary.
Mr.P. Sathish Murugan, the learned Counsel appearing for the petitioner submits that the petitioner had completed B.Sc., in rural development studies and Bachelor decree in physical education. He was originally appointed as Secondary Grade Physical Education Teacher in Assumption Aided Higher Secondary School, Chennai. He was paid incentive increment by the Assumption Aided Higher Secondary School till 16.03.1998. Thereafter, he was relieved from the said school and appointed as Physical Education Teacher on 17.03.1998 in the Government Higher Secondary School, Batlagundu. Now, the petitioner is continuously working as Physical Education Teacher in the Government Higher Secondary School, N.Panchampatty, from 09.06.1999 onwards. An audit was conducted by the Superintendent of Audit in the second respondent school from 04.09.2001 to 07.09.2001, in which he found that the petitioner was erroneously paid with the increments during 07.06.1989 to 16.03.1998 while he was working as a secondary grade physical education teacher in the Assumption Aided Higher Secondary School, Chennai and requested the first and second respondents to recover the increments already paid to the petitioner. On the basis of the audit report, the second respondent through the proceedings in Na.Ka. No. 25 of 2008, dated 20.02.2008 passed an order to deduct RS.15,558/-with a monthly instalment of Rs.1000/-for 16 months. Aggrieved by the said proceedings, the petitioner has already filed a writ petition for a writ of certiorari to call for the records relating to the proceedings Na.Ka. No. 25/2008, dated 20.02.2008, of the fourth respondent therein and quash the same. This Court by a detailed order dated 01.11.2010, disposed of the said writ petition setting aside the impugned proceedings and by giving liberty to the respondents to proceed afresh, by giving a proper notice and reasonable opportunity to the petitioner, in accordance with law.
After the order passed by this Court, the petitioner was issued with a show cause notice by the office of the Chief Educational Officer, Dindigul vide R.C. No. 3533/A4/2008, dated nil, August, 2011, asking to submit his explanation. In the said show cause notice it was clearly mentioned that the petitioner was appointed as Physical Education Teacher in Assumption Aided Higher Secondary School, Chennai with effect from 07.06.1989 and relieved from the school on the after noon of 16.03.1998. Then, he was appointed as Physical Education Teacher with effect from 17.03.1998 in the Government Higher Secondary School, Batlagundu and thereafter, he has been continuously working as Physical Education Teacher from 09.06.1999 onwards in the Government Higher Secondary School, N. Panchampatty. Therefore, at the time of his appointment in the above said aided school, he had passed the Technical qualification of B.P.Ed. in April, 1986 that is the basic qualification for appointment as Physical Education Teacher. On the basis of basic qualification i.e. B.P.Ed., acquired by the petitioner and the guidelines issued in Government Letter No.14878-M1/86-2, dated 08.04.1986, the petitioner was appointed as a Physical Education Teacher with effect from 07.06.1989 in Assumption Aided Higher Secondary School, Chennai. He was appointed as PET only for the basic qualification of B.P.Ed. While so, during the services of the petitioner in the above said aided school, the Correspondent of Assumption Aided Higher Secondary School, Chennai, has erroneously sanctioned the incentive increment as though the basic qualification of B.P.Ed., is a higher qualification with effect from 07.06.1989 and the same was also approved by the District Educational Officer, Chennai. Under these circumstances, by explaining the above mentioned facts, the petitioner was asked to show cause as to why the amount of Rs.15,558/-which was wrongly paid to him and stood as a loss to the Government, should not be recovered. After receipt of the said show cause notice, on 04.09.2011, the petitioner has sent a detailed explanation stating that he has not given any misrepresentation and therefore, the respondents cannot ask him to repay or recover the said amount as there was no fault on his part.
Heard the learned Counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents.
It is the admitted fact that the petitioner was appointed as Physical Education Teacher in Assumption Aided Higher Secondary School, Chennai on 07.06.1989 for having acquired the basic qualification viz., B.P. Ed., and thereafter he was relieved from the said school on the after noon of 16.03.1998 and on the next day i.e. 17.03.1998 he was appointed as Physical Education Teacher in the Government Higher Secondary School at Batlagundu and thereafter, on 09.06.1999 onwards he has been continuously working as Physical Education Teacher in the Government Higher Secondary School, N. Panchampatty. While the petitioner was appointed in the above said aided school, he possessed the technical qualification of B.P. Ed.. which is a basic qualification to be appointed as Physical Education Teacher. Even though the petitioner was not having any higher qualification, the Correspondent of the Assumption Aided Higher Secondary School, has wrongly sanctioned incentive increments to the petitioner during the period from 07.06.1989 to 16.03.1998. This shows that the Correspondent of the Assumption Aided Higher Secondary School has erroneously sanctioned the incentive increments to the petitioner though he is not entitled to receive the same. Later on, the said wrong payment of incentive increments for B.P. Ed., degree was found out by the Superintendent of Audit and they have passed an order of recovery, of course, without giving any prior notice. Therefore, aggrieved by the said notice, he came to this Court with a writ petition in W.P.(MD)No. 1863 of 2008 on the ground that no notice was given before the recovery order. This Court by a detailed order dated 01.11.2010, disposed of the said writ petition setting aside the impugned proceedings, by giving liberty to the respondents to proceed afresh, by giving a proper notice and reasonable opportunity to the petitioner, in accordance with law and the respondents were directed to refund the amount deducted through the first instalment. Thereafter, notice was given and for which the petitioner has also given his explanation. No doubt, the learned Government Advocate appearing for the respondents submits that as long as there is no misrepresentation from the side of the petitioner, the petitioner cannot be found fault with. This is not the question of finding fault with the petitioner. In fact, incentive increments were wrongly paid to the petitioner assuming that the petitioner has got a higher qualification, viz., B.P. Ed., when the petitioner has acquired B.P. Ed., that is a basic requirement for joining as Physical Education Teacher. Hence, the first respondent has initiated action afresh pursuant to the direction issued by this Court by issuing the fresh show cause notice dated nil, August, 2011 and subsequently after getting the explanation from the petitioner on 04.09.2011, the first respondent has rightly passed the impugned order asking the petitioner to repay the amount of Rs.15,558/-as early as possible. Therefore, this Court does not find any merits to interfere with the impugned order.
However, the learned Counsel appearing for the petitioner placed reliance upon a decision of this Court in R. Premakumari Vs. State of Tamil Nadu, , for the proposition that if any incentive increments are wrongly paid without any misrepresentation from the persons who acquired higher qualification while in service the said amount need not be recovered, but in the present case, the petitioner has not acquired any higher qualification at all to receive any incentive increment. Because, subsequently, much water has flown down. In a decision of the Hon''ble Supreme Court reported in Registrar, Co-operative Societies Haryana Vs. Israil Khan and Others, , it has been held as follows:
There is no "principle" that any excess payment to employees should not be recovered back by the employer. This Court, in certain cases has merely used its judicial discretion to refuse recovery of excess wrong payments of emoluments/allowances from employees on the ground of hardship, where the following conditions were fulfilled:
(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.
(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
In Col. (Retd.) B.J. Akkara Vs. The Govt. of India and Others, , this Court explained the reason for extending such concession thus: (SCC pp. 728-29, para 28)
Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will case undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected orcorrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.
(Emphasis supplied)
In the light of the above said observations, by taking note of the fact the petitioner is working as a Teacher now, if the order of recovery to deduct a monthly instalment of Rs.1000/-for 16 months is upheld, the petitioner would not be put to any hardship, accordingly, this Court is of the considered view that there is no merits in this writ petition, because, as held by the Hon''ble Apex Court in the case of Registrar, Cooperative Societies Haryana and others (cited supra) that there is no "principle" that any excess payment paid to the employees wrongly should not be recovered back by the employer.
In view of the above dictum, this Court is not inclined to use its discretion to refuse the recovery of excess payment on the ground of hardships because the petitioner is now working. Hence, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.