Madras High Court
T.Godwin Vedanayagam Rajkumar vs The Head Master on 19 January, 2021
W.A.(MD)No.197 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.01.2021
CORAM :
The Hon'ble Mr.SANJIB BANERJEE, THE CHIEF JUSTICE
AND
The Hon'ble Mr.JUSTICE M.M.SUNDRESH
W.A.(MD) No.197 of 2019
and
C.M.P(MD).No.1626 of 2019
T.Godwin Vedanayagam Rajkumar
.. Appellant/Writ Petitioner
Vs
1. The Head Master,
Government Boys Higher Secondary School,
Alanganallur, Madurai District.
2. The Regional Accounts Officer,
Educational Department,
Madurai – 625 002.
3. The Director of School Education,
Chennai – 600 006. .. Respondents/Respondents
PRAYER: Appeal under Clause 15 of the Letters Patent, against the order
dated 05.12.2018, passed in W.P.(MD) No.18628 of 2017.
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W.A.(MD)No.197 of 2019
For Appellants : Mr.G.Prabhu Rajadurai
For respondents : Mrs.S.Srimathy,
Special Government Pleader
JUDGMENT
[Judgment of the Court was delivered by
The Hon'ble Chief Justice]
The writ petitioner is in appeal upon having failed to convince the
Court of the first instance that the recovery proceedings initiated against
him were illegal.
2. It appears, on a plain reading of the judgment and order impugned
dated 05.12.2018, that the writ Court gave credence to the submission made
on behalf of the respondent authorities that the writ petitioner was not
eligible to receive the incentives for the additional qualification that he
already possessed prior to the writ petitioner's appointment as a Physical
Education teacher.
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3. The writ petitioner joined the service as a Physical Education
teacher in or about the year 1998. On the basis of the writ petitioner's
representation that he was entitled to additional payment because of his
higher qualification, the writ petitioner was granted requisite incentives.
The writ petitioner had cited that he had obtained the Master's and M.Phil.,
degrees in addition to the basic qualification of graduation in the field of
Physical Education. The payment continued to be made till on about the
year 2017. By the notice impugned in the writ petition dated March 22,
2017, the respondent authorities cited the audit objection to suggest that the
writ petitioner had to refund the additional incentives payment that the writ
petitioner had obtained from or about the year 1999. No grounds were
indicated as to why the audit had objected and the writ petitioner was not
afforded any opportunity to present his case or contend otherwise than what
was suggested in the so called audit objection.
4. What may have weighed with the learned Single Bench could be
that since the writ petitioner had obtained additional qualifications prior to
the writ petitioner joining the service in or about the year 1998, the relevant
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W.A.(MD)No.197 of 2019
Government notification pertaining to higher incentive payment did not
apply to the writ petitioner. However, such reasoning is not explicit in the
judgment.
5. What is specifically mentioned by the Single Bench is that the
higher incentives would not be applicable to teachers imparting Physical
Education training. The court of the first instance also referred to the
judgment of the Supreme Court reported at 2015 (4) SCC 334 (State of
Punjab vs. Rafiq Masih), where, at paragraph 18 of the report, the Supreme
Court observed as follows:-
“18. 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.
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W.A.(MD)No.197 of 2019
(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.”
6. Prima facie, the writ petitioner's case would be covered by the
third clause as indicated by way of example in the judgment of the Supreme
Court. It must also to be noticed that the judgment expressly makes out the
clauses not to be exhaustive.
7. It is not in dispute that the writ petitioner made a representation to
the respondent authorities for obtaining the higher pay and such request was
acceded to in the year 1999. As a consequence, the higher incentive
payment continued to be granted to the writ petitioner for nearly 18 years
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W.A.(MD)No.197 of 2019
and the writ petitioner got accustomed to receive such amount and may have
adopted a life style commensurate with the higher incentive payment being
his due. In such a scenario, to reverse the process would seriously prejudice
the writ petitioner, particularly, since the writ petitioner may not have
obtained the payment by making any fraudulent representation or by
distorting facts or otherwise misrepresenting his case.
8. It is a matter of interpretation as to whether a teacher with higher
qualifications at the time of appointment would be entitled to the higher
incentive pay by virtue of the higher qualifications; or the higher incentive
pay would be reserved only to the teachers who obtained such qualifications
in an area relevant to their subject in course of their employment. It is
nobody's case that the writ petitioner herein had represented to the
authorities that the writ petitioner had obtained the additional degrees
subsequent to the writ petitioner's appointment.
9. In the circumstances, the writ petitioner ought to have been given
notice of the objection taken by the auditors and the writ petitioner ought to
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W.A.(MD)No.197 of 2019
have been permitted an opportunity to deal with such objection. At any rate,
it was incumbent on the respondent authorities to have appropriately
addressed the issue since the respondent authorities had themselves allowed
the higher incentive pay to the writ petitioner.
10. The notice impugned in the writ petition was singularly lacking in
any form of reasons. The nature of the audit objection was not indicated and
it does not appear that either the writ petitioner himself or the respondent
authorities on behalf of the petitioner espoused the cause of the writ
petitioner or contested the objection. In the fitness of things, the writ
petitioner ought to have been permitted a chance to deal with the objection
even if the respondents failed in their obligation to impress the auditors that
the respondents had duly approved the higher incentive pay in favour of the
writ petitioner. As a consequence, the notice impugned in the writ petition
dated March 22, 2017, which includes a direction for recovery the incentive
pay made available to the petitioner from 1999, is set aside.
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W.A.(MD)No.197 of 2019
11. The writ petitioner has to be given an opportunity to deal with the
objection upon being informed of the nature of the objection. The
respondent authorities will carry the writ petitioner's representation or views
to the auditors, for the auditors to take a call on the matter. In the event the
auditors are dissatisfied and do not accept the views presented by the writ
petitioner, the resultant notice will give raise to a fresh cause of action to the
petitioner. At any rate, in view of clause 3 of paragraph 18 of the Supreme
Court judgment noticed above, it may not be possible to recover the
payment already made, since such payment had been paid from or about
1999 and long before the impugned notice dated 2017 was issued to the writ
petitioner.
12. It is a cardinal principle that a person cannot be allowed to
unjustly enrich himself. However, the principle of unjust enrichment is
qualified by several exceptions, some of which are enumerated in the
Supreme Court judgment. Payments that have been made over a long period
of time and the recovery whereof would cause serious hardship are not
allowed to be recovered, unless the payments are induced by the egregious
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W.A.(MD)No.197 of 2019
fraudulent conduct of the recipient.
13. For the reasons aforesaid, the judgment and order impugned are
set aside. However, this order will not prevent the respondent authorities
from citing the nature of objection raised by the auditors and allowing the
writ petitioner to make a representation thereagainst.
14. Writ Appeal (MD) No.197 of 2019, is allowed as above. There
will be no order as to costs. Consequently, the connected miscellaneous
petition is closed.
(S.B., CJ.) (M.M.S., J.)
19.01.2021
Index : Yes
Internet : Yes/No
sj/pkn
Note : In view of the present lock down
owing to COVID-19 pandemic, a web
copy of the order may be utilized for
official purposes, but, ensuring that
the copy of the order that is presented
is the correct copy, shall be the
responsibility of the advocate/litigant
concerned.
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W.A.(MD)No.197 of 2019
THE HON'BLE CHIEF JUSTICE
and
M.M.SUNDRESH, J.
(sj/pkn)
To
1. The Head Master,
Government Boys Higher Secondary School,
Alanganallur, Madurai District.
2. The Regional Accounts Officer,
Educational Department,
Madurai – 625 002.
3. The Director of School Education,
Chennai – 600 006.
W.A.(MD) No.197 of 2019
19.01.2021
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