Judgment:
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
05. 03.2015 CORAM THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU W.P.(MD)No.12271 of 2014 & M.P(MD)Nos.1 & 2 of 2014 V.S.Ramakrishnan ... Petitioner Vs. 1.The Joint Director of Agriculture, Thoothukudi, Thoothukudi District. 2.The Deputy Director of Horticulture, Sivagangai. ...Respondents PRAYER Writ Petition is filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorarified Mandamus to call for the records of the impugned order PaNe1/5330/13(1) dated 26.05.2014 (received on 23.06.2014) and Se.Mu.Order No.Ne.1/9523/2013 dated 23.06.2014 (received on 27.06.2014) issued by the second and first respondents respectively and quash the same as illegal and consequently directs the respondents to continue all the increments as per the original fixation and pass order by this Court may deem fit and proper. !For Petitioner :Mr.V.Rajiv Rufus ^For Respondents :Mr.S.Kumar Addl.Govt.Pleader. :ORDER
The petitioner challenging the impugned orders of recovery dated 26.05.2014 and 23.06.2014 respectively.
2. The case of the petitioner is as follows: He was appointed as Assistant Agricultural Officer Grade-II on 05.11.1981. He was promoted as Assistant Seed Officer in the year 2004 and further promoted as Deputy Agricultural Officer in the year 2008 with effect from 01.10.2008. After promoting the petitioner as Deputy Agriculture Officer, the respondents paid the second and subsequent increments to the petitioner and thereafter, he retired from service in the month of January 2015. In the meantime, the impugned orders of recovery have been passed on the ground that the petitioner has not passed the Departmental tests within a period of two years on his appointment as Deputy Agriculture Officer.
3. The learned Counsel appearing for the petitioner would submit that after promoting the petitioner as Deputy Agriculture Officer in the year 2008, the periodical increments were paid to the petitioner without any condition and having paid those increments, the respondents are not justified in recovering the same from the petitioner on the ground that the petitioner has not passed the Departmental tests within a period of two years of such promotion.
4. He further relied upon the decision of the Honourable Supreme Court made in Civil Appeal No.11527 of 2014 dated 18.12.2014 and contended that in respect of the employees who are due to retire within one year, no order of recovery can be made. He further contended that as per the above said decision of the Honourable Supreme Court, recovery in cases where an employee has wrongfully been required to discharge the duties of a higher post, even though he should have rightfully been required to work against an inferior post, also cannot be made.
5. The learned Additional Government Pleader filed a counter by the first respondent, wherein, it is stated that since the petitioner has not passed the Departmental tests within the stipulated time, the recovery orders have been rightly passed.
6. Heard the learned Counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents.
7. In this case, it is not in dispute that the petitioner was promoted as Deputy Agricultural Officer by the respondents in the year 2008. No doubt, under Rule 9(2)(b) of the Tamil Nadu Agricultural Extension Subordinate Service Rules, a Deputy Agricultural Officer who does not pass the tests within a period of two years from the date of his appointment in that post, shall not be allowed to draw his second and subsequent increments until he passes the test.
8. The fact remains in this case is that the respondents paid such increments to the petitioner which was undoubtedly not due to any misrepresentation on the part of the petitioner, as the petitioner did not claim, at any point of time, as though he passed the Departmental tests within a stipulated time.
9. It is true that the petitioner has not passed the Departmental test. But, at the same time, having paid the said increments in spite of such stipulated condition, whether the respondents are entitled to recover the same subsequently, is the question to be considered in this writ petition.
10. The Honourable Division Bench of this Court in a Writ Appeal in W.A.No.453 of 2007 dated 19.02.2009 found that the employee who had not misrepresented or is in no way responsible for the excess payment, which was discovered by way audit objection or otherwise, cannot be made to suffer with an order of recovery. In paragraph 15 of the said order it reads as follows:
"5. It is well settled that when the employee had not misrepresented or is in no way responsible for the excess payment which was discovered by way of audit objection or otherwise, there an be no recovery. In (1994) 2 SCC521(Shyam Bau Verma -vs- Union of India) the Supreme Court held that where excess amount had been paid due to no fault of the employees, there can be no recovery and that any excess amount drawn by the writ petitioner cannot be recovered from her. In 2009 (1) SCALE36(Syed Abdul Qadir -vs- State of Bihar) the Supreme Court has observed as follows:- "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. 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 vs. State of Haryana, 1995 Suppl. (1) SCC18 Shyam Babu Verma vs. Union of India, (1994) 2 SCC521 Union of India vs. M. Bhaskar, (1996) 4 SCC416 V. Ganga Ram vs. Regional Jt. Director, (1997) 6 SCC139 Col. B.K. Akkara (Retd.) vs. Government of India & Ors., (2006) 11 SCC709 Purshottam Lal Das & Ors. vs. State of Bihar, (2006) 11 SCC492 Punjab National Bank & Ors. vs. Manjeet Singh & Anr., (2006) 8 SCC647 and Bihar State Electricity Board & Anr., vs. Bijay Bahadur & Anr., (2000) 10 SCC99" In 2008 (15) SCALE486[State of Bihar vs. Pandey Jagdishwar Prasad]., it was held by the Supreme Court as follows : "It has been held in a catena of judicial pronouncements that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee. This Court in the case of Kailash Singh v. The State of Bihar and Ors. 2004 (1) PLJR289(SC), held that recovery sought to be made from the salary of the employees on the ground of alleged over stay in service on the basis of age assessed or considered, despite the fact that the employee has worked during the period of alleged over stay could not be made. In Sahib Ram v. State of Haryana and Ors., 1995 Supp. (1) SCC18 this Court has held that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee."
11. In a recent decision of the Honourable Supreme Court which is relied upon by the learned Counsel appearing for the petitioner, it has been observed in paragraphs 2, 3 and 12 reads as follows: "2. All the private respondents in the present bunch of cases, were given monetary benefits, which were in excess of their entitlement. These benefits flowed to them, consequent upon a mistake committed by the concerned competent authority, in determining the emoluments payable to them. The mistake could have occurred on account of a variety of reasons; including the grant of a status, which the concerned employee was not entitled to; or payment of salary in a higher scale, than in consonance of the right of the concerned employee; or because of a wrongful fixation of salary of the employee, consequent upon the upward revision of pay-scales; or for having been granted allowances, for which the concerned employee was not authorized. The long and short of the matter is, that all the private respondents were beneficiaries of a mistake committed by the employer, and on account of the said unintentional mistake employees were in receipt of monetary benefits, beyond their due.
3. Another essential factual component in this bunch of cases is, that the respondent-employees were not guilty of furnishing any incorrect information, which had led the concerned competent authority, to commit the mistake of making the higher payment to the employees. The payment of higher dues to the private respondents, in all these cases, was not on account of any misrepresentation made by them, nor was it on account of any fraud committed by them. Any participation of the private respondents, in the mistake committed by the employer, in extending the undeserved monetary benefits to the respondent-employees is totally ruled out. It would therefore not be incorrect to record, that the private respondents, were as innocent as their employers, in the wrongful determination of their inflated emoluments.
12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.
12. Applying the above decision of the Honourable Supreme Court to the present case, it is seen that the petitioner is not guilty of furnishing of incorrect information to get the benefits and as on the other hand it is only due to the mistake of Department such excess payment was made. Hence, I am of the view that the petitioner cannot be made to suffer by imposing the order of recovery as his case is squarely covered by the decision of the Honourable Supreme Court, more particularly, under Clauses 2 and 4 of paragraph 12 as extracted supra.
13. In this case, the recovery order has been made within one year of the date of the retirement of the petitioner. It is also seen that Clause 4 in paragraph 12 of the above said decision of the Honourable Supreme Court protects the petitioner's interest.
14. Accordingly, I find that the petitioner is entitled to succeed in the writ petition.
15. In the result, the Writ Petition is allowed and the impugned orders are set aside. The respondents are directed to refund the amount recovered from the petitioner within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, the connected Miscellaneous petitions are closed. 05.03.2015 Index :Yes/No Internet :Yes/No gsr TO1The Joint Director of Agriculture, Thoothukudi, Thoothukudi District. 2.The Deputy Director of Horticulture, Sivagangai. K.RAVICHANDRABAABU,J gsr W.P.(MD)No.12271 of 2014 05.03.2015