Recovery of excess payment made to employees, especially those belonging to Class-III service, is impermissible in law if it causes severe hardship and is iniquitous.

The Memo No.042351/576/Adm.I/A6/F.Doc./2014, dated 07.10.2014 issued by the 2nd respondent is under challenge.

2. The petitioner submits that he was originally appointed as Helper Trainee on 04.02.1991 and by internal selection he became Tester Chemical on 08.06.1994. He was given selection grade on 09.06.2003. He was promoted as Junior Chemist on 31.03.2006. The Tamil Nadu Electricity Board entered into a settlement with its employees unions as regards the revision of work allocation, staff pattern and revision of wages on 15.10.2005. In pursuance of the same as per the settlement dated 15.10.2005, the Tamil Nadu Electricity Board had implemented the demands made by the unions through B.P.(FB)No.11 (Secretariat Branch) dated 08.02.2006. Subsequently, the Board issued B.P.(Ch)No.107 (Secretariat Branch) dated 16.06.2006 and the scale of pay was revised as regards the post of Tester Chemical with effect from 01.12.2002 by Board Proceedings B.P.No.220 dated 16.10.2005. Already with regard to his pay scale, Audit Slip was issued and was dropped.

3. Thereafter in 2014, the 2nd respondent once again raised the settled issue and issued the impugned Order dated 07.10.2014, by passing the Order of recovery without following the principles of natural justice. For his request to drop the Order, no reply was passed, hence this writ petition.

4. Heard Mr. V. Stalin, learned counsel appearing for the petitioner and Mr. David Sunder Singh, representing counsel for the respondents.

5. The learned counsel Mr. V. Stalin for the petitioner would vehemently contend that already same issue of fixation of incorrect scale of was raised with respect of the petitioner and it was dropped by an Order dated 30.07.2010. Again the same issue was raised by the Audit Party and an Order of recovery was passed on 07.10.2014, which is impugned herein. He would further contend that the said Audit Slip was not served on him and he was given no opportunity to state his case when the said Order is passed.

6. To buttress his argument, he has placed reliance on the judgment of the Hon'ble Supreme Court in State of Punjab and others vs. Rafiq Masih (White washer) and others [(2015) 4 SCC 334], and contended that the petitioner, who was in Group C post and law is well settled that the recovery is totally impermissible for the employees belonging to Class-III.

7. In case of recovery of excess amount received by the employees, there were different views expressed in Shyam Babu Verma vs. Union of India [(1994) 2 SCC 521] and Sahib Ram vs. State of Haryana [1995 Supp (1) SCC 18] and in Chandi Prasad Uniyal vs. State of Uttarakhand [(2012) 8 SCC 417], the reference was unnecessary and the matter was sent to the Division Bench for appropriate disposal and it was 'disposed of' by the Division Bench. The Hon'ble Apex Court has fixed certain parameters in case of excess payment made and the recovery thereof.

While setting the parameters, the Hon'ble Supreme Court observed that "...wherein employees, who are beneficiaries of wrongful monetory gains at the hands of the employer, may not be compelled to refund the same...the instant benefit cannot be extended to an employee merely on account of the fact, that he was not an accessory to the mistake committed by the employer;

or merely because the employee did not furnish any factually incorrect information, on the basis whereof the employer committed the mistake of paying the employee more than what was rightfully due to him; or for that matter, merely because the excessive payment was made to the employee, in absence of any fraud or misrepresentation at the behest of the employee."

8. It is interesting to note in Syed Abdul Qadir vs. State of Bihar [(2009) 3 SCC 475], it was concluded by the Hon'ble Apex Court that the issue of recovery revolved on the action of being iniquitous “...when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if