IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 10.01.2011 Coram THE HON’BLE MR. JUSTICE VINOD K.SHARMA W.P.No.15690 of 2008 and M.P.Nos.1 and 2 of 2008 R.Velayutham .. Petitioner .. Vs .. 1. The Director of Public Health And Preventive Medicine, Anna Salai (D.M.S. Compound), Chennai – 6. 2. The Accountant General (A & E), Office of the Principal Accountant General, Teynampet, Chennai – 18. 3. The Deputy Director of Health Services, Thanjavur. ... Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records in pursuant to the impugned order passed by the second respondent in proceeding No.Pr.AG[A&E]/Pen 8/Unit IV/V 121/334/RTD/2005-2006, dated 20.01.2006 and quash the same and consequently direct the respondents to restore the scale of pay of the petitioner as fixed by the third Respondent in proceeding K.Dis.No.4704/2001 A2 dated 16.08.2001 and pay the arrears of pay and other monetary benefits with interest. For Petitioner : Mr.S.M.Subramaniam For RR-1 & 3 : Mr.B.Vijay, Government Advocate For R-2 : Mr.Vijay Shankar - - - - - O R D E R The petitioner has invoked the writ jurisdiction of this Court with a prayer for issuance of a writ in the nature of certiorari quashing the impugned order passed by the second respondent in proceeding No.Pr.AG[A&E]/Pen 8/Unit IV/V https://hcservices.ecourts.gov.in/hcservices/ 121/334/RTD/2005-2006, dated 20.01.2006 with a consequential prayer of restoration of the scale of pay of the petitioner as fixed by the third respondent vide order dated 16.08.2001. 2. The learned counsel for the petitioner, at the time of hearing of this writ petition, has given up his claim to the restoration of pay scale and has confined his challenge to the impugned order of recovery. 3. The facts leading to the filing of the writ petition are that the petitioner was appointed as Basic Health Worker on 20.09.1965 and promoted as Health Supervisor on 20.02.1989 and this post was subsequently re-designated as Health Inspector Grade-I. On 04.11.1988, the pay of the petitioner was fixed in the scale of Rs.1,600 - 2,660 in the post of Health Inspector which was subsequently, revised to Rs.5,900 – 9,900 vide G.O.Ms.No.162, Finance (Pay Cell) Department, dated 13.04.1998. At the time of retirement, the petitioner was in the pay scale of Rs.5,900 – 9,900. At the time of retirement, his pension was fixed in the said pay scale. 4. The case of the petitioner as set out in the affidavit is that on an audit objection questioning the fixation of pay of the petitioner, the impugned order was passed ordering recovery of excess amount paid to the petitioner. The pay of the petitioner was also re-fixed in the scale of Rs.8,150/- to 7,400/-. As already referred to above, the petitioner did not press his challenge to fixation of pay at lower stage. 5. The learned counsel for the petitioner challenged the order of recovery primarily on the ground that the impugned order is in violation of the principles of natural justice, as no notice was issued to the petitioner before ordering recovery. It is also the contention of the learned counsel for the petitioner that it is not the stand of the respondents that the petitioner had played any role in fixation of his pay in the grade of Rs.5,900 – 9,900 at Rs.8,150/-, therefore it is not open to the respondents now to effect recovery. 6. In support of his contention, the learned counsel for the petitioner placed reliance on a Judgments of the Hon'ble Supreme Court in the case of Bhagwan Shukla Vs. Union of India reported in (1994 (II) LLN 1074) and V.P.Raghavendra Acharya Vs. State of Karnataka reported in (2006(9) SCC 630). 7. There is force in the contentions raised by the learned counsel. The impugned order cannot be sustained, as it was admittedly passed in violation of principle of natural justice. Otherwise also, in absence of allegation of fraud or misrepresentation or role of the employee in fixation of pay at higher stage, it is not open to employer to recover the excess https://hcservices.ecourts.gov.in/hcservices/ amount paid to the employee. This view finds support from the decision of Hon'ble Division Bench of Punjab and Hariyana High Court in the case of Major General G.S.Riar Vs. State of Punjab (2010 (4) SLT 580) holding that in case of wrong fixation of salary if there are no allegations of any misrepresentation or fraud against the employee leading to wrong fixation of his salary and entire record and pay rules were before the authorities concerned at the time of fixation of salary, the employee cannot be blamed for wrong fixation of his pay, then no recovery is possible for such wrong fixation. 8. Consequently, this writ petition is allowed. The impugned order of recovery is quashed. In case any recovery has been made in pursuance to impugned order, the same be refunded to petitioner forthwith. Consequently, connected miscellaneous petitions are closed. No costs. jrl Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Director of Public Health And Preventive Medicine, Anna Salai (D.M.S. Compound), Chennai – 6. 2. The Accountant General (A & E), Office of the Principal Accountant General, Teynampet, Chennai – 18. 3. The Deputy Director of Health Services, Thanjavur. + 1 cc to Mr. S.M. Subramaniam, Advocate SR No.2657 + 1 cc to Mr. V. Vijay Shankar, Advocate SR No.2367 + 1 cc to Government Pleader, SR No.2588 NSM(CO) SR/7.2.2011 W.P.No.15690 of 2008 https://hcservices.ecourts.gov.in/hcservices/