IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933 WP(C).No. 7381 of 2007(D) ------------------------- PETITIONER(S): --------------- T.H.VIJAYAN, U.D.TYPIST(RETIRED), OFFICE OF THE J.F.C.M. VATAKARA THAYYULILATHAZHU(H) VATAKARA - KOZHIKODE. BY ADV. SRI.P.NARAYANAN RESPONDENT(S): --------------- 1. SECRETARY-HOME(C) DEPARTMENT, THIRUVANANTHAPURAM. 2. CHIEF JUDICIAL MAGISTRATE, KOZHIKODE. 3. JUDICIAL FIRST CLASS MAGISTRATE, VADAKARA. FOR R1 TO R3 GOVERNMENT PLEADER SMT. SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/05/2011, THE COURT ON 31/05/2011 DELIVERED THE FOLLOWING: WP(C).No. 7381 of 2007(D) APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF THE NOTICE DATED 02.05.06 EXT. P2: COPY OF THE REQUEST MADE BY THE PETITIONER TO THE JUDICIAL MAGISTRATE OF THE 1ST CLASS VATAKARA EXT.P3: COPY OF THE LETTER DATED 17.05.06 SENT FROM THE OFFICE OF THE J.F.C.M. VATAKARA //TRUE COPY// SM P.A. TO JUDGE S. SIRI JAGAN, J --------------------------------------- WP(C) No. 7381 of 2007 --------------------------------------- Dated this the 31st day of May, 2011 JUDGEMENT The petitioner is aggrieved by Ext.P1 order passed by the Judicial First class Magistrate's Court, Vatakara wherein the petitioner was directed to re-fund an amount of Rs. 11,181/- alleged to be received by the petitioner in excess of what was due to the petitioner on re-fixation of salary as the fixation of the salary was wrong. One of the main contention raised by the petitioner in this writ petition is that by Ext. P1, although it is styled as a notice the petitioner has been ordered to re-fund the said amount without issuing notice to the petitioner and hearing the petitioner. The petitioner therefore seeks the following relief:- i. A writ of certiorari or any other appropriate writ order or direction quashing Ext. P1 notice. ii. Issue a writ of Mandamus or any other appropriate writ or order direction commanding the respondents to release the amount recovered form out of the pensionary benefit WP(C) No. 7381 of 2007 2 on the basis of P1 notice. iii. Such other order or direction this Hon'ble Court deems fit to grant in the interning justice. 2. The second respondent has filed a counter affidavit supporting Ext. P1 order. Petitioner submits that even assuming that the fixation was wrong the excess amount drawn on account of the wrong fixation cannot be recovered from the petitioner if the petitioner has not contributed to the wrong fixation that too years after the fixation. The petitioner also refers to various decisions on the subject in support of that contention. 3. I have considered the rival contentions in detail. 4. From Ext. P1 order it is seen that the same has been issued based on a letter from the Additional Secretary Home ('C') Dept. Trivandrum, along with an endorsement of the Chief Judicial Magistrate. That does not refer to any WP(C) No. 7381 of 2007 3 notice to the petitioner or hearing. The recovery of amounts from the petitioner certainly would entail civil consequences to the petitioner . Moreover, the petitioner is entitled to bring to the attention of the authority concerned the legal position regarding recovery on wrong fixation, that too after long years of the fixation itself. Therefore the 3rd respondent could not have passed Ext. P1 without affording an opportunity of being heard to the petitioner and entering specific findings on the contentions raised by the petitioner against the recovery based on the decision of this Court and the Supreme Court. Therefore, I am satisfied that Ext. P1 order has been issued in violation of the principles of natural justice. Accordingly Ext. P1 is quashed. The third respondent is directed to reconsider the matter after issuing notice to the WP(C) No. 7381 of 2007 4 petitioner detailing the grounds on which the proposed action is to be taken and affording the petitioner an opportunity of being heard. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE. sm WP(C) No. 7381 of 2007 5