IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:30.04.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.20359/2006 & M.P.Nos1&2/2006 & M.P.No.1/2009 M.Panaiyadian ... Petitioner -vs- 1.The State of Tamil Nadu Rep. by its Secretary to Government, Commercial Taxes (H1) Department, Fort St. George, Chennai – 600 009. 2.The Deputy Inspector General of Registration, Salem Region, Salem-1. 3.The Accountant General (A&E), Tamil Nadu, Chennai – 600 018. ... Respondents Prayer : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus to call for the records relating to the impugned order passed by the second respondent in his proceedings No.6743/A1/05 dated 10.01.2006 revising and refixing the pay and quash the same as illegal and consequentially directing the respondents to pay gratuity amount without effecting any recovery on the salary paid to the petitioner. For Petitioner : Mr.M.Venkadesan for M.Ajmal Khan For Respondents : Mr.P.Muthukumar Govt. Advocate for RR1-2 Mr.V.Vijayshankar for R3 O R D E R By consent the main writ petition itself is taken up for disposal. The prayer in the writ petition is for issuance of writ of Certiorarified Mandamus to quash the order passed by the second respondent dated 10.01.2006, and consequently direct the respondents to pay the petitioner's gratuity amount without any recovery on the salary paid to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 2. The facts leading to the filing of the writ petition is as follows:- The petitioner was functioning as the District Registrar (Audit) and attained the age of superannuation on 31.12.2005. Pursuant to Government order No.1455, while in service as Sub- Registrar Grade-I, the petitioner's pay was refixed with effect from 01.01.1996, based on the recommendations of the fifth pay commission and the District Registrar by order dated 20.04.1998, revised the petitioner's scale of pay from 20.04.1998, from Rs.6493/- to Rs.7237/- along with allowances. Thereafter, pursuant to orders dated 29.02.1996, 01.01.1997 and 01.01.1998, the petitioner was granted an increment of Rs.200/- by each order. The second respondent by proceedings dated 16.11.1998, refixed the petitioner's pay at Rs.8,550/- with effect from 06.08.1998. The petitioner had drawn a sum of Rs.10,475/- as on the date of the superannuation i.e., 31.12.2005. Though, the petitioner attained the age of superannuation, he was not paid the gratuity and the same was withheld, when, the petitioner requested for settlement of gratuity amount, the second respondent by the impugned order dated 10.01.2006, revised and refixed the petitioner's pay by cancelling the earlier orders dated 22.05.1998 and 16.11.1998. The correctness of this order is assailed in the present writ petition . 3. The learned counsel appearing for the petitioner would contend that the second respondent has no jurisdiction to refix the petitioner's pay, after the petitioner was allowed to retire on superannuation on 31.12.2005. It is further contended that the petitioner's pay or pension shall not be reduced or altered to the petitioner's disadvantage and the order is illegal. It is further contended that the second respondent mechanically acted on the proceedings of the third respondent, when the third respondent had only sought for a clarification and to revise the orders, after a period of 18 years is wholly illegal and arbitrary. The petitioner relied on the decision on the Hon'ble Division Bench of this Court in D.Palavesamuthu Vs. Tamil Nadu Administrative Tribunal and others (2006) 1 MLJ 143. 4. The learned Government Advocate appearing for the respondents 1 and 2 by placing reliance on the counter affidavit would contend that after the petitioner attained the age of superannuation on 31.12.2005, the pension proposal was forwarded to the third respondent, who had made a remark that there was a difference in the petitioner's pay fixation and pointed out the amount of difference and based on which the impugned order was passed. It is contended that the increment was erroneously given to the petitioner and the impugned order itself is a notice. It is further stated that the petitioner had given a consent. https://hcservices.ecourts.gov.in/hcservices/ 5. The learned counsel appearing for the third respondent by relying on the counter affidavit would contend that while awarding Selection Grade to the petitioner on 22.07.1995, in the post of Sub- Registrar Grade II, the second respondent did not follow the correct procedure in the matter of fixation of pay, which resulted in higher rates of pay from 1995. It is further contended that the excess payment was on account of the wrong procedure adopted by the second respondent and therefore, the recovery is justified. 6. Heard, the learned counsels for the parties. 7. It is not in dispute that the petitioner attained the age of superannuation on 30.12.2005, and by Government order in G.O. (Rt). No.1455, Commercial Taxes Department, dated 30.12.2005, the petitioner was permitted to retire from the service on 31.12.2005. Prior to his retirement no action was initiated by the department with due intimation by the petitioner, proposing any recovery of excess payment of salary. For the first time, by the impugned order dated 10.01.2006, the recovery has been ordered by cancelling the earlier orders of the District Registrar, Namakkal in proceedings No. 1093/A1/98, dated 22.05.1998 and the proceedings of the Deputy Inspector General of Registration, Salem in No.5500/A/98, dated 16.11.1998. Further, prior to the impugned order, the petitioner was not given any show cause notice and was not afforded any opportunity to putforth his defence. However, the impugned order is on account of an objection/remark made by the office of the third respondent. Therefore, it is clear that the respondents 1 and 2 did not unilaterally take any action, but the impugned order is as a result of a objection pointed out by the third respondent. It is to be noted that by the impugned order, the orders dated 22.05.1998 and 16.11.1998 have been cancelled, after nearly a period of 18 years. Even as per the averments made in the counter affidavit filed by the third respondent, the excess payment to the petitioner has been made, since the second respondent did not follow the correct procedure in pay fixation and nowhere in the counter affidavit, it has been stated that the petitioner was responsible for such wrong fixation. The Hon'ble Division Bench in the case of D.Palavesamuthu, referred supra, after relying on the decision of the Hon'ble Supreme Court held as follows:- 7. It is worthwhile to refer the judgment of the Supreme Court in the case of Sahib Ram V. State of Haryana, 1995 AIR SCW 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, https://hcservices.ecourts.gov.in/hcservices/ "It is not on account of any misrepresentation made by the appellate 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 judgement of the Supreme Court in the case of Divisional Superintendent, Eastern Railway, Dinapur and others V. L.N.Kashri and others, AIR 1974 SC.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." 8. The ratio of the above decision is squarely applicable to the facts and circumstances of the present case, as in this case also the third respondent has pointed out that the excess payment is on account of wrong procedure adopted by the second respondent. Further, the petitioner was also permitted to retire from service of superannuation on 31.12.2005, and the impugned order of recovery was passed without affording any opportunity to the petitioner and by retrospectively canceling orders, which were passed 18 years prior to the impugned order. Hence, the impugned order is unsustainable and is liable to be set aside. 9. The learned counsel appearing for the petitioner would submit that after the filing of the writ petition, the department refused to release the gratuity and compelled the petitioner to remit the excess amount paid, therefore, the petitioner without prejudice his rights and under protest had deposited a sum of Rs.77,000/-, which is stated to be alleged excess payment to the petitioner and prays for appropriate direction to release the amount. https://hcservices.ecourts.gov.in/hcservices/ 10. In the result, the writ petition is allowed and the impugned order is set aside and the second respondent is directed to release the amount retained from the petitioner's gratuity within a period of three weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petitions are closed. No costs. pbn Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Secretary to Government, State of Tamil Nadu Commercial Taxes (H1) Department, Fort St. George, Chennai – 600 009. 2.The Deputy Inspector General of Registration, Salem Region, Salem-1. 3.The Accountant General (A&E), Tamil Nadu, Chennai – 600 018. + 1 cc to Government Pleader, SR No.29929 + 1 cc to M/s.M.Ajmal Khan, Advocate SR No.29849 + 1 cc to Mr. V. Vijay Shankar, Advocate SR No.29446 AKR(CO) SR/24.5.2010 Order in W.P.No.20359/2006 https://hcservices.ecourts.gov.in/hcservices/