1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.03.2011 CORAM: THE HONOURABLE MR.JUSTICE K.VENKATARAMAN W.P.(MD)No.3219 of 2011 and M.P.(MD)Nos.1 and 2 of 2011 S.Veluchamy : Petitioner Vs. 1.The Secretary, Education Department, St.Geoge Fort, Secretariat, Chennai. 2.The Director of Elementary Education, College Road, Chennai. 3.The District Elementary Educational Officer, Tuticorin District. 4.The Assistant Elementary Educational Officer, Pudur, Tuticorin District. : Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorari, to call for the records relating to the impugned proceedings in Na.Ka.No.314/A1, dated 31.07.2010 passed by the fourth respondent and quash the same. For Petitioner : Mr.A.P.Muthu Pandian For Respondents : Mr.N.Elango Government Advocate ORDER The petitioner, challenging the impugned order of the fourth respondent dated 31.07.2010, has filed the present Writ Petition. 2. By such order, the fourth respondent has directed the petitioner to repay a sum of Rs.38,408/- on the ground that the said amount has been mistakenly paid to him. 3. The learned counsel appearing for the petitioner mainly contended that the impugned order came to be passed without issuing notice to the petitioner and without hearing the petitioner. The said fact could not be disputed by the learned Government Advocate, who appears for the respondents. Even the impugned order does not show that the said order came to be passed after due notice to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 2 4. 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 even assuming, an employee has been paid excessively, the same cannot be recovered without due notice to him. 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 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 https://hcservices.ecourts.gov.in/hcservices/ 3 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." 5. In view of the above stated position, the impugned order of the fourth respondent dated 31.07.2010 is liable to be set aside and accordingly, set aside. The Writ Petition, therefore, stands allowed. It is needless to say that the fourth respondent is at liberty to pass orders afresh, after due notice to the petitioner and after hearing the petitioner. Consequently, the connected miscellaneous petitions are closed. No costs. Sd/- Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar To 1.The Secretary, Education Department, St.Geoge Fort, Secretariat, Chennai. 2.The Director of Elementary Education, College Road, Chennai. 3.The District Elementary Educational Officer, Tuticorin District. 4.The Assistant Elementary Educational Officer, Pudur, Tuticorin District. +1cc to Mr.A.P.Muthupandian, Advocate, Sr.No.7776 +one cc to Special Government Pleader, Sr.No. 8234 Order made in W.P.(MD)No.3219 of 2011 Dated:- 24.03.2011 SML SMA/05.04.2011/7C/3P https://hcservices.ecourts.gov.in/hcservices/