IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.02.2010 CORAM: THE HONOURABLE MR. JUSTICE M. VENUGOPAL W.P.No.20438 of 2004 N.Kaliamoorthy .... Petitioner Vs. 1. The Director of Public Health and Preventive Medicine D.M.S. Compound Chennai-6 2. The Deputy Director of Health Services Thanjavur ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of the writ of Certiorari as stated therein. For Petitioner : Mr. S.M.Subramaniam For Respondents: Mrs. C.K.Vishnupriya AGP O R D E R The petitioner has filed the writ petition praying for issuance of a writ of certiorari, in calling for the records in pursuant to the impugned order passed by the second respondent in Proc.R.No. 13666/98/A2 dated 19.12.2003 and to quash the same. 2. The petitioner was working as Health Inspector Grade -I in Government Primary Health Centre, Keela Kattur, Panthanallur Post, Thanjavur District. The petitioner has challenged the order of the recovery passed by the second respondent in proceeding dated 19.12.2003 mentioning that his promotion to the post of Multipurpose Health Supervisor in the year 1988 was irregular and as such the salary already paid to the petitioner was treated as excess amount and purported to be recovered. 3. The petitioner was promoted as Multi Purpose Health Supervisor from the post of Multi Purpose Health Assistant based on the Seniority in the year 1988 and resultantly, his scale of pay was fixed in the revised scale as per the implementation of pay commission in proceeding dated 28.12.1998 of the second respondent and he was receiving his pay for the past so many years without any interruption. https://hcservices.ecourts.gov.in/hcservices/ 4. After long lapse of time, the second respondent was constrained to issue the impugned order of recovery dated 19.12.2003 by cancelling the earlier fixation made in the year 1988 with effect from 4.11.1988 and such a recovery was unsustainable and arbitrary one in the eye of law. 5. The learned counsel for the petitioner urges before this Court that the impugned order of recovery dated 19.12.2003 was issued without any notice or any opportunity being given to the petitioner and therefore, there was violation of principles of natural justice and when the impugned order of recovery was issued after a lapse of so many years from the date of pay fixation , the salary already paid would not be recovered after long lapse of years and even in the wrong fixation of pay, the amount already paid should not be recovered and as a matter of fact, once the promotion was accepted and the petitioner was allowed to work in the promotional post, there was no justification in withdrawing the pay already given and as such a recovery sought for in the impugned order in Proc.R.No.13666/98/A2 dated 19.12.2003 was without jurisdiction and though the impugned order was passed on 19.12.2003, till date, no recovery was effected and therefore, prays for allowing the writ petition in the interest of justice. 6. The stand of the first respondent is that for effective implementation of various Health Programmes, the Government decided to adopt the norms followed by Government of India and issued G.O.Ms.No.1936 Health dated 29.9.1982 whereby integrating the various vertical Health Programmes and formulated Multi Purpose Health Workers Scheme. But only after disposal of various writ petitions filed against the implementation of the said scheme, the Government issued orders to implement the scheme in the State with effect from 4.11.1988 and the former category of Basic Health Workers/Vaccinators and Special Cholera Workers were amalgamated and renamed as Multipurpose Health Worker and accordingly, the petitioner was also absorbed as Multipurpose Health Workers with effect from 4.11.1988. 7. Later, considering the request of various Associations, Special Grade Avenue was introduced to the post of Multipurpose Health Workers thereafter redesignated as Multipurpose Health Assistant for those who have completed 20 years of service including the services rendered in the Multipurpose categories of Basic Health Workers, Vaccinators and Special Cholera Workers with effect from 4.11.1988,the date from which the scheme came into effect and in 1989, these Multipurpose Health Workers were promoted as Multipurpose Health Supervisors later redesignated as Health Inspector as per seniority in the post of Multipurpose Health Assistant. 8. The Special Grade Multipurpose Health Assistant who was promoted to the post of Multipurpose Health Supervisor earlier to https://hcservices.ecourts.gov.in/hcservices/ 27.6.1989 ie.. prior to issue of 5th Pay Commission (G.O.No.666 Finance Pay Cell dated 27.6.1989) and submitted his objection in time to come over to the revised scale of pay Rule 1989 on his date of promotion, the Government in its letter No.26846/PC/94-1 Fin(Pay Cell) Department dated 20.6.1994 had issued instruction to fix his pay in the old Selection Grade scale of pay of Multipurpose Health Supervisor first and then allow to fix their pay in the revised Selection Grade Scale of Pay of Multipurpose Health Supervisor. The Government letter was communicated to all the Offices of the first respondent, the pay of the petitioner mentioning the aforesaid Government letter was fixed directly in the revised Selection Grade Scale of pay of Multipurpose Health Supervisor with effect from 4.11.1988 ie.. before he was actually promoted as Health Supervisor during January 1989 but from the date of absorption as Multipurpose Health Workers and necessary instructions were issued to the Deputy Director of Health Services, Thanjavur to cancel the orders of irregular pay fixation done in the petitioner and to fix his pay as per the Government letter dated 20.6.1994 from the date of his actual promotion as Health Supervisor and to take speedy action to recover excess amount paid on account of the above said fixation and resultantly the second respondent cancelled the earlier fixation and ordered to recover the excess amount paid to him from 4.11.1988 ie., prior to his actual date of promotion during 1989. 9. As a matter of fact, no orders of promotion were made in the year 1988 in respect of the petitioner or other Multipurpose Health Assistants and only in January 1989, certain Multipurpose Health Workers were promoted as Multipurpose Health Supervisors (including the petitioner) as per his seniority. 10. The sum and substance of the contention of the respondents is that on account of irregular fixation of pay with effect from 4.11.1988 in respect of the petitioner, he had drawn excess pay and allowances and therefore, the recovery orders were issued properly and correctly and the petitioner gave an undertaking to the second respondent that if an order of fixation of pay with effect from 4.11.1988 was found to be in correct or inadmissible later, he would repay the over payment in one lumpsum and now the petitioner could not take a contrary stand to the undertaking given by him and therefore prays for dismissal of the writ petition. 11. In support of the contention that the petitioner was not at fault for the irregular fixation of pay with effect from 4.11.1988 and the consequent withdrawal of excess amount of pay and allowances thereto, the learned counsel for the petitioner cites the decision of this Court in D.Palanvesamuthu-v-Tamil Nadu Administrative Tribunal (2006(1) MLJ 143)wherein it held that' fault committed by the Department and their Officers and petitioner cannot be penalised after lapse of number of years that too after retirement.' https://hcservices.ecourts.gov.in/hcservices/ 12. He also relies on the decision reported in S.A.Kanthimathi-v- Director of School Education, Madras (2006(1) MLJ 695) wherein it is held thus: "A perusal of the impugned order of recovery nowhere discloses that the petitioner has misrepresented or suppressed for the receipt of excess scale of pay. Further, no notice or opportunity was given to the petitioner before the impugned order of recovery was passed and as stated, the petitioner also retired from service. Therefore, the impugned order of recovery is quashed." 13.The learned counsel for the petitioner seeks in aid of the decision of the Hon'ble Supreme Court in Sahib Ram-v-State of Haryana and others(1995 Supp(1) SCC 18 at 20 in paragraph 5) wherein it is observed thus: "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 the 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." 14. He also relies on the decision of the Hon'ble Supreme Court in Shyam Babu Verma and Ors-v- Union of India & Ors(JT 1994 (1) SC 574) wherein the Hon'ble Supreme Court at paragraph 11 it is observed thus: " Although we have held that the petitioners were entitled only to the pay scale of Rs.330-480 in terms of the recommendations of the Third Pay Commission w.e.f. 1.1.1973 and only after the period of 10 years, they became entitled to the pay scale of Rs.330-560, but as they have received the scale of Rs.330-560 since 1973, due to no fault of theirs, and that scale is being reduced in the year 1984 with effect from 1.1.1973, it shall only be just and proper not to https://hcservices.ecourts.gov.in/hcservices/ recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners, due to the fault of the respondents, the petitioners being in no way responsible for the same." 15.Be that as it may, the learned counsel for the petitioner invites the attention of this Court to the proceedings of the Deputy Director of Health Services, Thanjavur in R.No.13666/98/A2 dated 28.12.1998 wherein in partial modification of the office proceedings R.No.6363/89/A3 dated 8.8.90 and with reference to the orders issued in Government letter No.104282/PC1/86-3 dated 18.12.86 and clarification issued in Government letter No.25846/PC/94-1 , the pay of the petitioner was fixed at Rs.1600/- with effect from 4.11.88 in the scale of pay Rs.1600-50-2300-60-2660 etc and consequent on the above fixation his claim was to be claimed and adjusted against the recovery wherever etc and later the impugned order dated 19.12.2003 was issued by proceedings of the Deputy Director of Health Services, Thanjavur NO.13666/98/A2 dated 19.12.2003 and the date of next increment was to be on 1.1.1989. 16. The principle of natural justice is to 'hear the other side'. No decision shall be taken without hearing the party to be affected. The ingredients of fair hearing are(a) prior notice(b) Right to make representation(c) Right to be heard when all these are wanting, then the decision arrived at is a clear case of an arbitrary one. "civil consequence" means 'everything that affects a citizen in his civil life inflicting a civil consequence in the considered opinion of this Court. Also the term 'natural justice' is a form of justice in its abstract moral sense as distinct from a legislation or a statute or a decision of a Court of law. 17. It is an axiomatic principle of law that any monetary recovery affecting the civil consequence of an individual will have to be made only after issuance of necessary show cause notice to the agreed/affected and also after hearing any objections filed by the concerned party, without issuance of necessary show cause notice pertaining to the excess payment of recovery, if any order is passed, the same is not valid in the eye of law because of the simple fact that the said order militate against the principles of natural justice which refers to fairness and reasonableness and in short it is justice according to one's conscience. It is true that they are not codified the set of rules but at the same time it cannot be forgotten that they are uncodified and the term natural justice cannot be put in a straight jacket cast iron formula. If natural justice principles are not followed then it will infringe upon Article 14 of the Constitution of India in the considered opinion of this Court. https://hcservices.ecourts.gov.in/hcservices/ 18. As far as the present case is concerned, the impugned order in NO.13666/98/A2 dated 19.12.2003 pertaining to the recovery of excess payment in respect of the petitioner was made without adhering the principles of natural justice and therefore, the same isvitiated in the eye of law. 19. Also, the petitioner could not be found fault with since he was not directly responsible for the purported wrong fixation and therefore, the amount paid to him should not be recovered and that too after long lapse of nine years and all the more when the petitioner attained superannuation and viewed in that perspective, this Court is of the considered view that the petitioner should not be taken for a ride or penalised and resultantly, this writ petition stands allowed by setting aside the impugned order of recovery of excess payment in Rc.No.13666/98/A2 dated 19.12.2003. 20. In the result, this writ petition is allowed and the impugned order passed by the second respondent in Rc.NO.13666/98/A2 dated 19.12.2003 is set aside. It is made clear that the second respondent shall not make any recovery in regard to the excess payment made to the petitioner. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sg To 1. The Director of Public Health and Preventive Medicine D.M.S. Compound, Chennai-6 2. The Deputy Director of Health Services Thanjavur + 1 CC to the Government Pleader SR NO 12348 W.P.No.20438/2004 KA(CO) sra 08/03/2010 https://hcservices.ecourts.gov.in/hcservices/