1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16.03.2011 CORAM: THE HONOURABLE MR.JUSTICE K.VENKATARAMAN W.P.(MD).No.2953 of 2011 and M.P.(MD)No.1 of 2011 Mr.N.Vairavanathan : Petitioner Vs. 1.The Director, Public Health and Preventive Medicine, DMS Campus, Thenampet, Chennai-6. 2.The Deputy Director, Health Services, Sivakasi, Virudhunagar District. 3.The Medical Officer, Government Primary Health Centre, Jaminkollankondan, Virudhunagar District. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, to call for the records pertaining to the impugned order in Na.Ka.No.4789/S-1/10, dated 27.12.2010 on the file of the second respondent and the consequential order in Na.Ka.No.510/Aa/Su/Ni/2010, dated 10.01.2011 on the file of the third respondent and quash the same. For Petitioner : Mr.T.Lajapathi Roy For Respondents : Mr.V.Rajasekaran Special Government Pleader ****** O R D E R The present Writ Petition is laid challenging the impugned order of the second respondent dated 27.12.2010, in and by which, the second respondent has re-fixed the salary of the petitioner and sought to recover the excess salary paid to the petitioner. The https://hcservices.ecourts.gov.in/hcservices/ 2 petitioner also challenged the consequential order of the third respondent dated 10.01.2011. 2. The short matrix of the matter is set out hereunder: (i) The petitioner was recruited in the respondents department as Health Inspector on 11.05.1987. Presently, he is working in the Primary Health Centre in Sivakasi, Virudhunagar District, under the third respondent. In the year 1996, the fifth pay commission was constituted by the Government of Tamil Nadu for the purpose of re- fixing the payments and allowances of the Government servants belonging to various departments of Tamil Nadu Government. Basing on the same, he was also provided with the revisional salary. (ii) Subsequent to the re-fixation of his salary, an audit was conducted by the Assistant Director (Departmental Audit), Virudhunagar. It has been observed by the Audit Department that since the petitioner is availing the new payment as per the re-fixation, the excess amount received during the period from 1996 to 1998 and further amount received after re-fixation was to be repaid by him. In view of the said audit objection, the second respondent has passed the impugned order stating that he was wrongly paid the salary and, therefore, he was advised to repay the entire amount said to have been paid excessively. He made a representation to the second respondent explaining the entire position. However, the second respondent has not given any hearing to the petitioner and hence, the petitioner has come up with the present Writ Petition challenging the said proceeding of the second respondent dated 27.12.2010 and the consequential order of the third respondent dated 10.01.2011. 3. The learned counsel appearing for the petitioner contended that (i) the impugned orders were passed by respondents 2 and 3 without issuing notice to the petitioner and without hearing the petitioner; (ii) The re-fixation could be done, according to the learned counsel appearing for the petitioner, only after due notice to the petitioner; (iii) Even assuming that the petitioner has been paid salary excessively, the same cannot be recovered from the petitioner, since such pay fixation was made not at the instance of the petitioner or in view of the suppression made by the petitioner. 4. The learned Special Government Pleader appearing for the respondents, however, seeks to support the orders passed by respondents 2 and 3. But he is unable to point out from the impugned orders that the impugned orders came to be passed, after due notice to the petitioner. He is also unable to state that the excess pay fixation was made to the petitioner on his misrepresentation. https://hcservices.ecourts.gov.in/hcservices/ 3 5. I have considered the submissions made by the learned counsel appearing for the petitioner and the learned Special Government Pleader appearing for the respondents. 6. The first and foremost submission that was made by the learned counsel appearing for the petitioner is that the impugned orders came to be passed without due notice to the petitioner and without hearing the petitioner. From the impugned orders, it could not be culled out that the said orders came to be passed, after due notice to the petitioner and after hearing the petitioner. In the impugned orders, there is no reference about the notice sent to the petitioner. Even in the body of the orders, it is not stated that the petitioner was served with a notice and thereafter only, the impugned orders came to be passed. 7. In view of the above stated position, I am of the considered view that (i) the impugned orders came to be passed by respondents 2 and 3 without due notice to the petitioner and without hearing the petitioner. (ii) The impugned order reveals that the fixation of pay was made erroneously and hence, it has been re-fixed again. Even assuming that respondents 2 and 3 have valid ground to re-fix the salary of the petitioner, the same can be done only after due notice to the petitioner and after hearing the petitioner. (iii) Even otherwise, the salary that has been paid already to the petitioner from the year 1998 cannot be recovered in the year 2010. Such view was taken by a Division Bench of this Court in the judgment in Palavesamuthu, D. v. Tamil Nadu Administrative Tribunal reported in (2006) 1 MLJ 143, wherein it has been 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....". https://hcservices.ecourts.gov.in/hcservices/ 4 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 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." 8. In view of the above stated position, I am of the considered view that the impugned order passed by the second respondent dated 27.12.2010 and the consequential order of the third respondent dated 10.01.2011 are liable to be set aside and accordingly, set aside. The respondents cannot recover the excess amount paid to the petitioner. However, the re-fixation can be made after due notice to the petitioner and after hearing the petitioner. I am making it very clear that the excess amount paid to the petitioner cannot be recovered from the petitioner and the re-fixation can be given effect to only from the date of the order to be passed by the respondents. 9. The Writ Petition stands allowed accordingly. Consequently, the connected miscellaneous petition is closed. No costs. Sd/- Deputy Registrar (Accounts) /True Copy/ Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 5 To 1.The Director, Public Health and Preventive Medicine, DMS Campus, Thenampet, Chennai-6. 2.The Deputy Director, Health Services, Sivakasi, Virudhunagar District. 3.The Medical Officer, Government Primary Health Centre, Jaminkollankondan, Virudhunagar District. +1 CC to Special Government Pleader (SR.No.6838) +1 CC to Mr.T.Lajapathi Roy, Advocate (SR.No.6824) Order made in W.P.(MD).No.2953 of 2011 Dated:16.03.2011 SML NSV/31.3.11/5P/6C https://hcservices.ecourts.gov.in/hcservices/