IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 18.02.2010 CORAM THE HON'BLE MR. JUSTICE R. SUDHAKAR WRIT PETITION NO.42709 OF 2006 M. Arumugam .. Petitioner Vs 1. The Director of Adi-Dravidar and Tribe Welfare Chepauk, Chennai – 600 005 2. The District Welfare Officer, Adi Dravidar Welfare, Thiruvannamalai, Thiruvannamalai District 3. The Special Tahsildar, Chengam, Thiruvannamalai District .. Respondents Prayer: Original Application No.6584 of 1999 on the file of Tamil Nadu Administrative Tribunal, on abolition, transferred to the file of this Court and renumbered as W.P. No.42709 of 2006, praying for the issuance of a writ of Mandamus, under Article 226 of the Constitution of India to call for the records relevant to the order in Na.Ka.K2.1267/93 dated 14.09.1999 passed by the second respondent and quash the same as illegal improper unreasonable arbitrary and against the natural justice. For Petitioner : Mr. M.V. Muralidharan For Respondents : Mr. S. Shivashanmugam Government Advocate ORDER This writ petition is filed to call for the records relevant to the order in Na.Ka.K2.1267/93 dated 14.09.1999 passed by the second respondent and quash the same as illegal improper unreasonable arbitrary and against the natural justice. https://hcservices.ecourts.gov.in/hcservices/ 2. The original application has been filed in the year 1999. The petitioner, then head master, who was 48 years old at the time of filing the original application, challenges the order of recovery. By the impugned proceedings, the third respondent directed the recovery of certain amount stating that excess amount has been paid as salary to the petitioner and that amount should be recovered. The main grievance of the petitioner is that the order of recovery has been passed without issuing a show cause notice and without affording an opportunity to the petitioner to put forward his plea on merits. In any event, the order is a non speaking order and without reasons. 3. Reply affidavit has been filed explaining the grounds on which,the order of recovery has been passed. One of the reason inter-alia is that the petitioner did not serve as a headmaster for certain period of time and he was paid higher salary for the said period and therefore, the recovery is justified. The said contention in the reply affidavit does not form part of the impugned proceedings and therefore, the respondents' plea as above is not justified. 4. It is trite law that the case of the respondents cannot be improved on the basis of the counter-affidavit or the written submissions vide Mohinder Singh Gill and another – v. - The Chief Election Commissioner, New Delhi and others AIR 1978 Supreme Court 851 and S.N.Mukherjee – v. - Union of India (1990)4 SCC 594. In para 8 of the decision in AIR 1978 SC 851 reads as follows:- "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J., in Gordhandas Bhani (AIR 1952 SC 16)(at p.18): "Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to https://hcservices.ecourts.gov.in/hcservices/ have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself". Orders are not like old wine becoming better as they grow older." Para 36 in (1990)4 SCC 594 reads thus:- "36. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision on judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage." 5. Further more, in this case, the order of recovery has been passed without issuing a show cause notice to the petitioner and therefore, there is gross violation of principles of natural justice. In such view of the matter, the impugned proceedings is set aside https://hcservices.ecourts.gov.in/hcservices/ giving liberty to the respondents to proceed further in accordance with law if they so desire. This writ petition is ordered accordingly. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar ra To 1. The Director of Adi-Dravidar and Tribe Welfare Chepauk, Chennai – 600 005 2. The District Welfare Officer, Adi Dravidar Welfare, Thiruvannamalai, Thiruvannamalai District 3. The Special Tahsildar, Chengam, Thiruvannamalai District. 1 cc To Mr.M.V.Muralidaran, Advocate, SR.11065. 1 cc To The Government Pleader, SR.11315. Writ Petition No.42709 of 2006 RSN(CO) RVL 10.03.2010 https://hcservices.ecourts.gov.in/hcservices/