IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.03.2010 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.NO.3064 OF 2009 M.P.No.1 of 2009 and M.P.No.1 of 2010 R.Rangarajan .. Petitioner vs 1.The Director of Local Fund Audit Kuralagam, IV Floor Chennai 600 108 2.The Municipal Commissioner Sirkali Municipality Sirkali Nagapattinam District .. Respondents Writ Petition is filed under Article 226 of the Constitution of India for the issue a writ of Certiorarified Mandamus calling for the records relating to the order passed by 1st respondent in Ni.Mu.No.8565/e/x/r/(5)/2008 dated 25.07.2008 and quash the same, consequently direct the respondents to refund the attached amount of Rs.1,01,773/- as gratuity with 18% gratuity and refix the last drawn pay at Rs.5,900/- from the date of retirement. for petitioner : Mr.A.R.Nixon for respondents : Mrs.Sneha, G.A., ORDER By consent of both sides, the writ petition is taken up for final disposal. 2. Prayer in the writ petition is to issue a writ of Certiorarified Mandamus calling for the records relating to the order passed by 1st respondent in Ni.Mu.No.8565/e/x/r/(5)/2008 dated 25.06.2008 and quash the same and consequently direct the respondents to refund the attached amount of Rs.1,01,773/- as gratuity with 18% gratuity and refix the last drawn pay at Rs.5,900/- from the date of retirement. 3. (i) The petitioner is a senior citizen and he retired from service on superannuation on and from 31.5.2007 and Revenue Assistant https://hcservices.ecourts.gov.in/hcservices/ from the 2nd respondent Municipality. At the time of retirement the petitioner was drawing scale of pay of Rs.5,900/- as basic scale of pay. The petitioner is drawing Pension through Indian Overseas Bank in P.P.O.No.20087. (ii) In the order of retirement, the 2nd respondent stated that the petitioner is liable to pay a sum of Rs.45,780/- towards time barred arrears and also subjected to the future audit objection if any. (iii) It is further stated in the affidavit that the 1st respondent has given a direction on 16.11.2007 to the second respondent to revise the scale of pay of the petitioner which was sanctioned from the year 01.06.1988 till 01.01.1996. Based on the directions of the 1st respondent the second respondent has calculated the scale of pay of the petitioner from 01.06.1988 to 01.01.1996 and revised the scale of pay for 20 years and instructed to recover a sum Rs.45,780/- and wrong pay fixation from 01.01.1996 and ordered recovery of a sum of Rs.5,000/-. Totalling the first respondent has withheld a sum of Rs.1,01,773/- from the gratuity amount. The petitioner's total gratuity comes to Rs.4,81,375/- and reduced a sum of Rs.1,03,273/- and paid a sum of Rs.3,78,102/-. Apart from that they have deducted a sum of Rs.1,500/- towards Health Funds, the balance of amount is Rs.1,07,773/-. On calculating the total amount the same comes around Rs.91,773/-. But they have deducted excess amount of Rs.10,000/- without any account. Hence, this writ petition is filed to set aside the order passed by the 1st respondent dated 25.07.2008. 4. (i) The respondent has filed a counter affidavit stating that the petitioner was an employee under the 2nd respondent and he retired from service on superannuation as Revenue Assistant on 31.5.2007 A.N. (ii) It is submitted that on his retirement, his pension proposals were forwarded by the 2nd respondent vide letter Na.Ka.No.4240/2007/B1 dated 28.8.2007 to the 1st respondent. It was found that there was incorrect fixation of pay from 1.6.1988 to 31.5.2007. By letter Pa.Mu.No.38747/07/MPV(5) dated 12.11.2007 the first respondent returned the pension proposal to the 2nd respondent to fix correct pay and work out the excess pay amount so as to recover the same from his Death cum Retirement Gratuity. (iii) It is submitted that as per G.O.Ms.No.264, M.A.&W.S. Department dated 18.9.91 the nomenclature of Bill Collector in the Municipalities and Corporations was changed as Revenue Assistant was made interchangeable with those of Junior Assistants. As per this Government Order the next promotion in the post of Revenue Assistant Grade-I, was that of Junior Assistant which was in operation only during for the period from 1.6.1988 to 17.9.1991. https://hcservices.ecourts.gov.in/hcservices/ Moreover, while awarding selection grade for completion of ten years of service in the post of Revenue Assistant the instructions issued in G.O.Ms.No.304, should be followed whereby it is stipulated that whenever the promotion post happens to be in a lower scale of pay then the selection grade scale of pay, the concerned employees in such posts are eligible for selection grade scale as applicable for promotion post only. (iv) It is further submitted that in the G.O.Ms.No.484, M.A.&W.S. Department dated 31.7.1989 it was ordered that the scale of pay of Revenue Assistant cannot be equated with that of Junior Assistant during the period from 1.6.1988 to 17.9.1991 as during the said period the posts were not interchangeable. Hence, his last pay was revised at Rs.5700 +235 PP by adhering strictly to the Government instructions in the abovesaid Government order and G.O.Ms.No.264, dated 18.9.91. (v) It is further submitted that in this case his pay was erroneously fixed in the scale of Rs.1200-2400 instead of Rs.975-1660 in the office of the 2nd respondent with effect from 1.6.1988 and continued upto 31.5.2007 which was violative of the instructions issued in the said G.O.Ms.No.304 dated 20.8.1990. This has resulted in excess payment of pay and allowances amounting to Rs.1,01,773/-. The advance and time barred arrears of Rs.45,780/- and excess pay on account of wrong fixation as informed by the Commissioner Rs.40,993/-. The amount mentioned by the Commissioner is not correct, as the pay was arrived as Rs.4,500/- instead of Rs.4,400/- with effect from 1.1.96. Hence, the difference amount of Rs.15,000/- was added to the above total and the total recovery works out to Rs.1,01,773/-. The total excess payment of Rs.1,01,773 was calculated and the abovesaid amount of Rs.1,01,773/- was adjusted against his Death-cum-Retirement Gratuity and the recovered amount was sent to the 2nd respondent. The office of this respondent has sent a reply dated 12.11.2007 and 13.5.2008 to the petitioner about the excess payment made due to wrong fixation of pay and informed that the adjusted amount was sent to the 2nd respondent. 5. The learned counsel for the petitioner submits that without any misrepresentation or furnishing wrong details by the petitioner, the respondents have fixed the pensionary benefits and the same was in accordance with the petitioner's last drawn pay and without without giving any opportunity of hearing, the first respondent has passed the impugned order of recovery and re-fixation of pension. The learned counsel for the petitioner further submitted that the issue as to whether any recovery could be made from the salary already paid to an employee without any misrepresentation or suppression of fact was considered and it is held that no recovery could be made from the salary already paid. https://hcservices.ecourts.gov.in/hcservices/ 6. The learned Government Advocate appearing for the respondents submits that the petitioner has not suppressed any fact and the respondents on their own fixed the pension, which was subsequently found wrong and hence the impugned order of recovery is passed. 7. Heard both sides. 8. In this case, it is seen that the petitioner was an employee under the 2nd respondent Department and as per the Government Order in G.O.Ms.No.484, dated 31.07.1989, the scale of pay of Revenue Assistant cannot be equated with that of Junior Assistant during the period from 01.06.1988 to 17.09.1991, as during the said period the posts were not interchangeable. Therefore, the petitioner's pay was revised at Rs.5700 + 235 pp in accordance with the Government Order in G.O.Ms.No.264, dated 18.09.1991 and the arrears of pay and allowances were calculated and paid to the petitioner, as it was found that the pay fixation from 01.06.1988 to 01.01.1996 was wrongly fixed and therefore the order of recovery was passed without any notice or opportunity to the petitioner. It is claimed by the petitioner that the pay fixation was not due to his misrepresentation and that the respondent has fixed it as per the Government Orders. 9. In the above circumstances, the question that arises for consideration is whether the impugned order is vitiated by non- issuance of a notice and an opportunity of hearing to the petitioner, as this court has time and again considered cases similar to the case on hand and passed judgments based on several Supreme Court decisions. 10. In the light of the above submissions and following the decisions of the Supreme Court reported in (1995) 1 SCC (Supp) 18 (SAHIM RAM V. STATE OF HARYANA)and (2007) 6 SCC 180 (BABULAL JAIN V. STATE OF MADHYA PRADESH) and the decisions of the Division Bench of this Court reported in (2006) 3 MLJ 461 (D.PALAVESAMUTHU V. TAMIL NADU ADMINISTRATIVE TRIBUNAL) and (2006) 3 MLJ 1025 (P.ARUMUGAM V.REGISTRAR, TAMIL UNIVERSITY) and the decision of N.PAUL VASANTHAKUMAR, J. reported in (2006) 1 MLJ 695 (S.A.KANTHIMATHI V. DIRECTOR OF SCHOOL EDUCATION, MADRAS), I hold that the impugned order of recovery cannot be sustained. 11. In the result, the Writ Petition is allowed. The impugned order dated 25.7.2008 passed by the 1st respondent is set aside. It is open to the 1st respondent to issue notice to the petitioner, hear his objections, if any, and then proceed with re-fixation of pension. No costs. Connected miscellaneous petitions are closed. Sd/ https://hcservices.ecourts.gov.in/hcservices/ Asst.Registrar /true copy/ Sub Asst.Registrar sal To 1.The Director of Local Fund Audit Kuralagam, IV Floor Chennai 600 108 2.The Municipal Commissioner Sirkali Municipality Sirkali Nagapattinam District. 1 cc To Mr.A.R.Nixon, Advocate, SR.16443. 1 cc To The Government Pleader, SR.16546. W.P.NO.3064/2009 & M.P.No.1/2009 & M.P.No.1/2010 VSV(CO) RVL 31.03.2010 https://hcservices.ecourts.gov.in/hcservices/