1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.03.2011 CORAM: THE HONOURABLE MR.JUSTICE K.VENKATARAMAN W.P.(MD).No.2856 of 2011 and M.P.(MD)No.1 of 2011 J.Sasikala : Petitioner Vs. 1.The District Collector, Madurai District, Madurai. 2.The Assistant Director, (Auditing Department), Madurai. 3.The Commissioner, Panchayat Union, Alanganallur, Madurai. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari calling for the entire records relating to the third respondent in his proceedings dated 23.02.2010 in Na.Ka.No.38/2010/m6 and quash the same. For Petitioner : Mr.A.Theethar For Respondents : Mr.V.Rajasekaran Special Government Pleader O R D E R Mr.V.Rajasekaran, learned Special Government Pleader, takes notice on behalf of the respondents. By consent, the Writ Petition is taken up for final disposal at the stage of admission itself. 2. The present Writ Petition is filed challenging the proceedings of the third respondent dated 23.02.2010, in and by which, the salary already paid to the petitioner is sought to be recovered alleging that the same has been paid excessively by mistake. 3. The case of the petitioner is that she was appointed as a Noon- meal Organizer on 03.01.1996 at Rajakkanpatti Village. At the time of appointment, she has got monthly salary of Rs.200/-. In the year 1999, she was transferred to Pomminayakkanpatti Primary School, Alanganallur Village, Madurai. The basic salary was paid to her at the rate of Rs.760/- instead of Rs.600/-. The said excess amount is sought to be recovered and hence, the petitioner has approached this Court by filing the present Writ Petition. 4. The learned counsel appearing for the petitioner mainly contended that such an order came to be passed by the third respondent without notice to the petitioner and without hearing the petitioner. That apart, he has contended that even assuming that excess salary has been https://hcservices.ecourts.gov.in/hcservices/ 2 paid, the same cannot be recovered, unless otherwise, it is the case of the third respondent that such excess salary was paid to the petitioner, in view of the fault committed by the petitioner or the petitioner has suppressed certain facts to get that excess salary. 5. The learned Special Government Pleader appearing for the respondents is unable to point out from the impugned order that the said order came to be passed, after due notice to the petitioner and after hearing the petitioner. Further, he is unable to substantiate that the said recovery is justified. 6. I have heard the learned counsel appearing for the petitioner as well as the learned Special Government Pleader appearing for the respondents. 7. It is not in dispute that the petitioner was paid basic salary at the rate of Rs.760/- instead of Rs.600/-. However, the fact remains that the petitioner has not suppressed any material facts to get that excess salary. That apart, even assuming that the amount could be recovered from the petitioner, the same cannot be done without due notice to the petitioner and without hearing the petitioner. The excess salary paid to the petitioner is sought to be recovered from the year 1996 till 2010. 8. A Division Bench of this Court in the judgment in Palavesamuthu, D. v. Tamil Nadu Administrative Tribunal reported in (2006) 1 MLJ 143, has held that such recovery cannot be done. Paragraph Nos.7,8 and 9 of the said 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 https://hcservices.ecourts.gov.in/hcservices/ 3 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." 9. Considering the above facts and circumstances of the case and considering the judgment referred to above, I am of the considered view that the impugned order passed by the third respondent is liable to be set aside and accordingly, set aside. The Writ Petition stands allowed. Consequently, the connected Miscellaneous Petition is closed. No costs. Sd/- Deputy Registrar (LA) /True copy/ Assistant Registrar To 1.The District Collector, Madurai District, Madurai. 2.The Assistant Director, (Auditing Department), Madurai. 3.The Commissioner, Panchayat Union, Alanganallur, Madurai. SML order made in W.P.(MD).No.2856 of 2011 Dated:-11.03.2011 TR : 15.03.2011 : 3p/4c : IT https://hcservices.ecourts.gov.in/hcservices/