The petitioner has come forward with this petition seeking for the relief of quashing the impugned order passed by the second respondent relating to proceeding No.A-1/568/08, dated 02.09.2008 and directing the respondents to refund the sum of Rs.70,450/- recovered from the petitioner's D.C.R.G. within a stipulated time.
2.The brief facts of the case leading to the filing of this writ petition are as follows;
(a) The petitioner was recruited through District Employment Exchange, Madurai and appointed as Office Assistant in the Sedapatti Panchayat Union on 06.03.1972 in the regular time scale of pay and later he was promoted as Record Clerk on 19.05.1992. The petitioner retired on 29.02.2008 on attaining the age of superannuation. After his retirement, the first respondent did not sanction any regular pension. The petitioner was granted minimum pension on the ground of erroneous sanction of two increments for passing S.S.L.C examination and wrong fixation of pay in the cadre of Record Clerk. The first respondent made it as a condition to repay the alleged excess amount paid to the petitioner from D.C.R.G. for the full payment of pension D.C.R.G. and commutation of pension.
(b) As per the instructions of the first respondent, the second respondent passed the order dated 02.09.2008 in his proceedings No.A-1/568/08 for the recovery of a sum of Rs.70,450/- from the petitioner's D.C.R.G. Pursuant to the said order, the Director of Local Fund Audit, the first respondent herein also effected the recovery of a sum of Rs.70,450/- from D.C.R.G of the petitioner and paid the residual amount as per his proceedings No.R.C/401/0-9/09 dated 06.05.2009. Being aggrieved against the order passed by the second respondent, the petitioner is constrained to approach this Court.
3.Mr.S.Visvalingam, learned counsel appearing for the petitioner contended that the impugned order of recovery is liable to be quashed on the ground that there is absolutely no fault on the side of the petitioner. It is contended that the petitioner has not made any misrepresentation and the respondents claimed that the pay of the petitioner was wrongly fixed for the cadre of Record Clerk.
4. In support of his contention, learned counsel for the petitioner would place reliance on the decisions of this Court : (1)P.Lingam V. Union of India reported in 2008 (5) MLJ 1331 ; (2)C.E. (General), Public Works Department V. M.Thanasekaran reported in 2009 (5) MLJ 1 (HC) ; and (3) M.A.Vadamalai Raju V. General Insurance Corpn. of India reported in 2009 (4) MLJ 1089.
5. Heard Mr.R.Manoharan, learned Government Advocate, on the submissions made by the learned counsel for the petitioner.
6. I have carefully considered the submissions of both sides and also perused the materials available on record including the impugned order.
7. The undisputed fact remains that the petitioner retired as Record Clerk on 29.02.2008 on reaching his age of superannuation. After his retirement, the impugned order was passed on the ground that the pay of the petitioner was wrongly fixed for the cadre of the Record Clerk. It is seen that there is absolutely no fault whatsoever on the part of the petitioner. Further it is not the case of the respondents that the petitioner has made any misrepresentation or fraud and as such, this Court is of the considered view that the impugned order is liable to be set aside.
8. The Hon'ble Apex Court in Syed Abdul Qadir V. State of Bihar reported in 2009 (3) SCC 475 held that, "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 of 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."
9. The Division Benches of this Court in a catena of decisions have categorically held that if the excess amount was paid by the State even though by mistake and if there is no mistake on the part of the officer concerned, such excess payment cannot be recovered.
10. In P.Lingam V. Union of India reported in 2008 (5) MLJ 1331, a Division Bench of this Court held that, "In the matters relating to fixation of scale of pay, the scope of judicial review is limited. However, with regard to recovery of excess amount already paid to the employee, when it has been paid not on the basis of any representation, far less misrepresentation made by the employee, it would be unjust to direct recovery of such amount."
11. The two other Division Benches have also taken a similar view in C.E. (General), Public Works Department V. M.Thanasekaran reported in 2009 (5) MLJ 1 (HC) and in M.A.Vadamalai Raju V. General Insurance Corpn. of India reported in 2009 (4) MLJ 1089.
12. Therefore, in view of the above settled principle of law laid down by the Hon'ble Apex Court as well as the Division Benches of this Court and also considering the above admitted facts, this Court is constrained to set aside the order passed the second respondent in A-1/568/08 dated 02.09.2008 and accordingly, the same is set aside and the first respondent is also directed to refund the amount of Rs.70,450/- within a period of eight weeks from the date of receipt of copy of this order.
13.With the above direction, this writ petition stands allowed.
gcg To
1.The Director of Local Fund Audit, Kuralagam 4th Floor, Chennai 600 108.
2.The Panchayat Union Commissioner, Sedapatti, Peraiyur Taluk, Madurai District.
3.The Addl. Public Prosecutor, Madurai Bench of Madras High Court, Madurai.