IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.09.2008 CORAM THE HONOURABLE MR.JUSTICE P. JYOTHIMANI W.P. No. 17801 of 2007(T) (O.A. No. 1610 of 2004) K. Palaniammal ..Petitioner Vs. 1. The Deputy Director of Health Services, Saidapet, Chennai – 15. 2. The Director of Public Health and Preventive Medicine, D.M.S. Compound, Teynampet, Chennai – 6. 3. The Accountant General of Tamil Nadu, Teynampet, Chennai – 18. ..Respondents Prayer: The application in O.A. No. 1610 of 2004 on the file of the Tamil Nadu Administrative Tribunal to call for the records pursuant to the impugned order passed by the 1st respondent in Proc.K.Dis. No. 5785/S1/2001 dated 13.05.2003 and quash the same and consequently direct the respondents to repay the amount already recovered with interest has been transferred to the file of this Court and renumbered as W.P. No. 17801 of 2007. For Petitioner :: Mr.S.M. Subramanian For Respondents:: Mr.P. Muthukumar, GA O R D E R Heard the learned counsel for the petitioner as well as the learned Government Advocate for the respondents. https://hcservices.ecourts.gov.in/hcservices/ 2. The writ petition is directed against the order of the 1st respondent dated 13.5.2003 by which the 1st respondent has directed recovery of alleged excess payment made to the petitioner from 1.1.1996 till the date of the said order. The calculation, which is annexed to the impugned order, in fact, shows that the excess amount sought to be recovered is from 1989-1990 onwards. 3. The petitioner was working as a Community Health Nurse in Primary Health Centre, Sadras, Kancheepuram District and retired from service on attaining the age of superannuation on 31.1.2004. She was originally working as Sector Health Nurse and subsequently, promoted as Community Health Nurse with effect from 27.5.1989. Consequent to her promotion, her pay scale was revised and fixed in the scale of Rs.2000-60-2300-75-3200. As per the said fixation, she was receiving salary for the period from 1989 to 2003. As already stated, the petitioner was allowed to retire from service on attaining the age of superannuation by the order of the 1st respondent dated 31.1.2004. However, by the impugned order dated 13.5.2003, recovery has been ordered based on which the 1st respondent has proceeded to recover the amount due as per the calculation given in the impugned order from the terminal benefits of the petitioner. This necessitated the petitioner to approach the Tamil Nadu Administrative Tribunal by filing O.A. No. 1610/2004 and the said O.A. has been transferred to the file of this Court and renumbered as W.P. No. 17801 of 2007. 4. A fair reading of the impugned order of the 1st respondent dated 13.5.2003 makes it clear that the 1st respondent has ordered to recover the excess amount alleged to have been paid to the petitioner from 1996 till the date of the said order without even affording any opportunity to the petitioner. Further, there is no reason adduced and it is not known as to whether there was any audit objection and as to how the amount was fixed or refixed, except giving the calculations. In the absence of reasons for effecting such recovery, it cannot be construed as if excess amount had been paid to the petitioner. It is not even the case of the respondents that the excess amount paid to the petitioner was on account of any misrepresentation on her part. In such circumstance, the impugned order, on the face of it, is liable to be set aside. 5. Law is well-settled that in cases where refixation of salary is made, not on account of any misrepresentation or fraud by the employee, it is not open to the employer to recover the amount, especially if the employee had been allowed to retire. In Sahib Ram V. State of Haryana and Others (1995 Supp(1) SCC 18), the Supreme Court was considering the case of upgraded pay scale of a Librarian in a College, who was, admittedly, not possessing the qualification as prescribed by the University Grants Commission. In normal circumstances, he would not be entitled for relaxation of the required qualification. However, the Principal of the College, under https://hcservices.ecourts.gov.in/hcservices/ whom the Librarian was working, by error, granted relaxation and ultimately, based on the same, revised scale of salary was paid to him. It was, in those circumstances, that the Supreme Court held as hereunder: "5. Admittedly, the appellant does not possess the required educational qualifications. Under the circumstances, the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, 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 be at fault. Under the circumstances, the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs." The said judgment has been subsequently followed in a hierarchy of cases including the case of D. Palavesamuthu V. Tamil Nadu Administrative Tribunal rep. by its Registrar, Chennai and Others (2006 1 MLJ 143), wherein a Division Bench of this Court consisting of P. Sathasivam,J., as he then was and S.K. Krishnan,J., has held as follows: "6.....Even if it is accepted for the argument sake that salary of the petitioner is fixed in a wrong scale of pay, it is the fault committed by the Department and their Officers, for which the petitioner should not be penalised after a lapse of number of year that too after retirement of the petitioner. 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, "..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 be at fault. Under the circumstances, the amount paid till date may not be recovered from the appellant."" https://hcservices.ecourts.gov.in/hcservices/ The above decision was also followed in M. Andy V. State of Tamil Nadu (2006 4 MLJ 1534) wherein it was held that "employee cannot be penalised for fault committed by authorities, after a lapse of 24 years, that too after employee's retirement and such order passed without notice, withdrawing benefits conferred earlier, is arbitrary and in violation of the principles of natural justice." Reference was also made to the judgment of the Supreme Court rendered in Divisional Superintendent, Eastern Railway, Dinapur and Others V. L.N. Kashri and Others AIR 1974 SC 1889 and it was further observed as follows: "12. A further reading of the order shows that by abruptly passing the order it proceeds to recover such benefits from the petitioner. Even without going to the other aspects, in my considered view, the impugned order is liable to be set side on the basis of the violation of the principles of natural justice. While admittedly, the benefits have been given and the person has been retired even on 1999, such an order has been passed cancelling the benefits after 24 years cannot be accepted as legal on all canon of law or approved under any concept of justice. When once the pay has been fixed especially after the lapse of such a long time, the petitioner has got a vested right and interest to the post and also to the scale of pay which was fixed and paid to him. While so, such confirmation cannot be taken away abruptly and arbitrarily without giving notice to the petitioner as pointed by the learned counsel for the petitioner. The Hon'ble Supreme Court in the judgment reported in Divisional Superintendent, Eastern Railway, Dinapur V. L.N. Kashri (supra) ha categorically laid down the law in paragraph 6 as follows: "The respondents were confirmed in the scale of Rs.110-180. 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." 6. Applying the above cited legal dictums to the facts of the case on hand, the impugned order is liable to be set aside as it is not only violative of the principles of natural justice inasmuch as no opportunity was given to the petitioner before passing the said order, but also on the basis that it does not disclose the reason for effecting such recovery. Accordingly, the impugned order is set aside and the writ petition is allowed. No costs. It is made clear that in the event of any recovery having been made by the 1st https://hcservices.ecourts.gov.in/hcservices/ respondent pursuant to the impugned order, the same shall be refunded to the petitioner within four weeks from the date of receipt of a copy of this order. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. nv To 1. The Deputy Director of Health Services, Saidapet, Chennai – 15. 2. The Director of Public Health and Preventive Medicine, D.M.S. Compound, Teynampet, Chennai – 6. 3. The Accountant General of Tamil Nadu, Teynampet, Chennai – 18. + 1 CC To Mr.S.M.Subramaniam, Advocate SR NO.51754 W.P. No. 17801 of 2007(T) CK(CO) SRA(25/09/2008) https://hcservices.ecourts.gov.in/hcservices/