1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:01.04.2011 CORAM: THE HONOURABLE MR.JUSTICE K.VENKATARAMAN W.P.(MD)No.2932 of 2011 and M.P.(MD)No.2 of 2011 1.P.Christy 2.Selvamani 3.Rabuni Punch Kumari : Petitioners Vs. 1.The Director of Adi-Dravidar and Tribal Welfare, Ezlilagam, Chennai-600 005. 2.The District Adi-Dravidar Welfare Officer, Madurai District, Madurai Collectorate Buildings, Madurai-625 020. 3.The Special Tahsildar, Unit II Adi-Dravidar Welfare, Madurai-625 020. : Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, to call for the records resulting in the impugned order in Na.Ka.No.1357/06/A, dated 04.01.2007 issued by the third respondent herein and quash the same as illegal and to direct the third respondent to disburse the recovery made on 04.01.2007, by which a sum of Rs.1,75,725.14 has been retained out of the Death cum retirement gratuity payable to the B.T. Assistant warden (Special Grade) K.Panchandy together with interest within the stipulated period. For Petitioners : Mr.S.Alagarsamy For Respondents : Mr.N.Ilango Government Advocate ORDER The present Writ Petition is laid challenging the impugned order of the third respondent dated 04.01.2007 with a further direction to the third respondent to disburse the death -cum- retirement gratuity and other amount due to the deceased K.Panchandy, the then B.T. Assistant Warden (Special Grade), who is the husband of the first petitioner and the father of the petitioners 2 and 3. 2. The short matrix of the matter is set out hereunder: (a) The first petitioner is the wife and the second and third https://hcservices.ecourts.gov.in/hcservices/ 2 petitioners are the daughters of the deceased Panchandy. The deceased Panchandy was working as a B.T. Assistant Warden (Special Grade) under the third respondent. He retired from service on 31.01.2007 on attaining the age of superannuation. He died on 22.05.2010. (b) While he was alive, the third respondent has passed the order dated 04.01.2007 stating that as per the audit report, he has spent over and above a sum of Rs.1,75,725.14 for providing food to the inmates of the hostel and that he has to make good loss the amount. He was pursuing that he is not responsible for the said loss. However, he was allowed to retire from service only after getting assurance deed in the stamp paper that the amount claimed by the respondents can be withheld in his terminal benefits. (c) On his death, the petitioners have approached the respondents to settle the amount. But, however, the amount has not been settled and hence, they have come up with the present Writ Petition challenging the impugned order of the third respondent dated 04.01.2007 and also seeking direction to the third respondent to disburse the money due to them. 3. The learned counsel appearing for the petitioners submitted that the impugned order is liable to be set aside on the following grounds: (i) The said order came to be passed without serving notice to the deceased employee and without hearing him. (ii) Even assuming that excess amount has been spent for purchasing food items for the inmates of the hostel, the same cannot be recovered on and from 16.08.1985. That apart, had the notice been issued to the deceased employee, he would have explained the reason for excess spending. 4. The learned Government Advocate appearing for the respondents is unable to point out that the impugned order came to be passed by the respondents, after due notice to the employee and after hearing the employee. 5. I have heard the learned counsel appearing for the petitioners and the learned Government Advocate appearing for the respondents. 6. The facts disclosed above would indicate that the deceased employee has spent a sum of Rs.1,75,725.14 towards purchase of provisions for the inmates of the hostel. The said amount, even according to the respondents, was spent from 16.08.1985. However, the impugned order came to be passed only on 04.01.2007, that too, on account of audit report. In such circumstances, I am of the considered view that without causing notice to the employee and without hearing the employee, an order of recovery cannot be made. In the present case on hand, as rightly pointed out by the learned counsel appearing for the petitioners, the deceased employee has not been put on notice about the alleged excess amount spent by him. Even in the impugned order, it could not be culled out that the same was passed, after due notice to the employee. 7. A Division Bench of this Court in Palavesamuthu, D. v. Tamil Nadu Administrative Tribunal reported in (2006) 1 MLJ 143, has held that such recovery cannot be made. Paragraph Nos.7,8 and 9 of the said https://hcservices.ecourts.gov.in/hcservices/ 3 judgment are usefully extracted hereunder: "7. It is worthwhile to refer the Judgment of the Supreme Court in the case of Sahib Ram v. State of Haryana, 1995 AIR S.C.W. 1780. In that case, the Principal of College granted relaxation while fixing the revised pay scale of a Librarian. After finding that the Principal erred in granting him the relaxation, their Lordships have concluded, ".... it is not on account of any misrepresentation made by the appellant that the benefit of higher pay-scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to at fault. Under these circumstances, the amount paid till date may not be recovered from the appellant....". 8. The learned counsel appearing for the petitioner has also brought to our notice that the Department has not issued notice or given opportunity before ordering recovery, but proceeded merely on the basis of the report of the Accountant-General. According to him, reduction of pay and recovery of pay without hearing him are illegal. In support of the said argument, he relied on the Judgment of the Supreme Court in the case of Divisional Superintendent, Eastern Railway, Dinapur and others v. L.N.Kashri and others, A.I.R.1974 S.C 1889. In similar circumstances, their Lordships have held that, "The appellants having fixed the scale and confirmed the respondents could not reduce the scale without giving any opportunity to the respondents to be heard. Furthermore, the respondents on confirmation became entitled to rights to the post and to the scale of pay fixed by the Board." The said decision is applicable in all force to the case on hand. The above principles and material aspects have not been considered by the Tribunal and the Tribunal has committed an error in dismissing the application of the petitioner. 9. Under these circumstances, the impugned order of the Tamil Nadu Administrative Tribunal, dated 10.01.2003 made in O.A.No.2662 of 2001 and the order dated 28.02.2011 of the District Adi-Dravidar and Tribal Welfare Officer, Kancheepuram are quashed and the Writ Petition is allowed." 8. Considering the above facts and circumstances of the case, I am of the considered view that the impugned order is liable to be set aside. Though the deceased employee has executed an assurance deed in the stamp paper to the respondents that the amount claimed by them could be recovered from his terminal benefits, as rightly pointed out by the learned counsel appearing for the petitioners, the said deed seems to have been obtained by the respondents either on the date when the deceased employee has attained the age of superannuation or immediately prior to that. In view of the same, much cannot be made on the said deed executed by the deceased employee. 9. In view of the above stated position, the impugned order of the third respondent dated 04.01.2007 stands set aside and the Writ https://hcservices.ecourts.gov.in/hcservices/ 4 Petition, therefore, stands allowed. It is needless to say that the respondents are bound to settle the entire terminal benefits to the petitioners at the earliest, in any event, within a period of one month from the date of receipt of a copy of this order. Consequently, the connected miscellaneous petition is closed. No costs. SML Sd/- Assistant Registrar[CO] /True copy/ Sub Assistant Registrar To 1.The Director of Adi-Dravidar and Tribal Welfare, Ezlilagam, Chennai-600 005. 2.The District Adi-Dravidar Welfare Officer, Madurai District, Madurai Collectorate Buildings, Madurai-625 020. 3.The Special Tahsildar, Unit II Adi-Dravidar Welfare, Madurai-625 020. +1 cc to Special Government Pleader, SR.No.12553. Order made in W.P.(MD)No.2932 of 2011 Dated:01.04.2011 4P/5C RPB 09.04.2011 https://hcservices.ecourts.gov.in/hcservices/