The petitioner has filed O.A.No.1334 of 1998, seeking to challenge the order of the third respondent, dated 21.7.1997. In view of the abolition of the Tribunal, the matter stood transferred to this court and was renumbered as W.P.No.37470 of 2006. On behalf of the second respondent, a reply affidavit, dated 16.4.98 was filed. The first respondent has filed a so-called adoption reply affidavit, adopting the reply affidavit allegedly filed by the third respondent, by its affidavit, dated 6.2.99. But, so far no such affidavit has been filed by the third respondent.
2.It is seen from the records that the petitioner was working as a Road worker in the third respondent Municipality. He got retired on 30.06.96 on reaching the age of superannuation, which was fixed as 60 years. However, it is claimed that by G.O.Ms.No.263, MA&WS Department, dated 6.10.94, the age of superannuation for the NMR Workers, working in Municipalities was fixed as 58 years and not 60 years, as claimed by the workman. If this G.O., which came into effect was implemented, the petitioner had reached the age of superannuation, i.e. 58 years on 30.06.94. But, however, the petitioner was allowed to continue in service and he got retired only on 30.06.96. 3.Thereafter, an objection was raised by the second respondent, stating that the continuance of service by the petitioner upto 30.6.96 was improper and the period from 6.10.94 till 30.06.96 was to be calculated as re-employment and the orders should be passed accordingly. The third respondent consequently issued the impugned proceedings, dated 21.7.97, stating that a sum of Rs.23,547/- being the excess salary and medical reimbursement, pongal bonus, earned leave, surrender leave payment was to be recovered from him.
4.The Tribunal, by its order dated 23.4.98, granted an interim stay of recovery on the ground that no notice was given to him. The said interim order was also directed to be continued until further orders. With reference to this allegation, the reply affidavit is silent. In justification of the recovery, in para 8 of the reply filed by the second respondent, it has been averred as follows:
"8.It is submitted that the second Respondent has followed the above Government instructions scrupulously while verifying the pension proposals of the petitioner received from the third Respondent and at once pointed out that the petitioner has been allowed to continue his service upto 60 years instead of 58 years by the third Respondent and thereby the petitioner has been allowed extra 2 years of service from 7.10.94 to 30.6.96 which is contrary to the Government orders as above. The second Respondent has also directed the third Respondent to treat the period of extra 2 years from 6.10.94 as a period of re-employment and take necessary action thereof. ..."
5.The Supreme Court in Syed Abdul Qadir and others Vs. State of Bihar and others reported in (2009) 3 SCC 475 has held that even in case of wrong fixation of pay, the court can exercise equity jurisdiction and nullify recoveries being made. Therefore, it is necessary to refer to the following paragraphs 57 to 59 found in the said judgment, which are as follows:
"57.This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if 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.
58.The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, Shyam Babu Verma V. Union of India, Union of India v. M.Bhaskar, V.Gangaram v. Director, Col.B.J.Akkara (Retd.) v. Govt. of India, Purshottam Lal Das V. State of Bihar, Punjab National Bank vs. Manjeet Singh and Bihar SEB v. Bijay Bhadur.
59.Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."
6.In the present case, the petitioner never made any misrepresentation for continuance of service. It was the third respondent, which had retired the petitioner from service on reaching 60 years of age. During the relevant period, the petitioner had worked and earned his wages. Therefore, the question of making any alleged excess payment towards wages and other allowances did not arise. The ratio laid down by the Supreme Court would squarely apply to the case of the petitioner.
7.In the light of the above, the writ petition stands allowed. The impugned order insofar as making a recovery for a sum of Rs.23,547/- is hereby set aside. If the amounts had already recovered from the terminal benefits of the petitioner, the same shall be paid to the petitioner within 12 weeks from the date of receipt of the copy of the order together with 6 % per annum interest from the date of deduction till the date of the actual payment. However, there will be no order as to costs.
vvk To
1.The Secretary to Government, Municipal Administration and Water Supply Department, Fort St. George, Chennai-600 009.
2.The Director, Local Fund Audit, 4th Floor, Kuralagam, Chennai-600 108.
3.The Commissioner, Ambattur Municipality, Chennai 600 053