IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.04.2010 Coram: THE HONOURABLE MR. JUSTICE B.RAJENDRAN Writ Petition No. 42381 of 2006 in O.A. NO. 7547 of 1999 S.Namachivayam .. Petitioner vs. The Deputy Director (Hydraulics), Institute of Hydraulics and Hydrology Poondi, Thiruvallur District. .. Respondent Prayer: This Writ Petition came to be numbered under Article 226 of the Constitution of India, by way of transfer of O.A. No. 7547 of 1999 from the file of the Tamil Nadu Administrative Tribunal with a prayer to call for the records relating to the impugned order of the respondent in Se.Mu.No. 4752/97 dated 09.11.1999 and quash the same. ------- For Petitioner : Mr. P. Rajendran For Respondent : Mr. P.Gurunathan Government Advocate ------- O R D E R The Original Application in O.A. No. 7547 of 1999 before the Tamil Nadu Administrative Tribunal is the present writ petition. 2. The petitioner is only challenging the re-fixation and recovery order passed by the Deputy Director(Hydraulics), Institute of Hydraulics and Hydrology, Poondi, Thiruvallur District, dated 02.09.1992. The only point raised by the petitioner was before the order of recovery and the re-fixation, no notice has been issued at all. The recovery has been done as per the audit objections which was also not communicated to the petitioner. Therefore, any recovery of money from Government servant without notice is invalid. Therefore, the petitioner is now challenging the impugned order. But, the Government has not filed any counter. 3. The learned government Advocate would contend that subsequent audit objection has revealed the mistake and the authority can https://hcservices.ecourts.gov.in/hcservices/ definitely recover and re-fix the salary and hence, the order issued by the authority was valid. 4. Heard both sides. 5. The only point raised was that the impugned order has been passed without issuance of basic notice, which is against the Principles of Natural Justice. Since the order was passed without notice, this petition is under challenge. As per the Division Bench, Judgment reported in 2008(1) MLJ 358 (R.Premkumari V. State of Tamil Nadu, rep. by its Secretary to Government, Education Department, Chennai and others). Para 9 of the judgment is extracted hereunder: "9. The second ground of attack by the learned counsel appearing for the appellant is that the finding of the learned Judge found in paragraph 9 is erroneous that even if it is a case of wrong fixation, the employee is entitled for notice and, therefore, this Court must follow the decision of the Supreme Court in Sahib Ram v. State of Haryana 1995 Supp (1) SCC 18. In that decision, it is clearly stated by the Supreme Court that even if wrong fixation has been made by the authorities, when recovery of the same is made, minimum principle of natural justice has to be followed and, therefore, the employee is entitled for notice. We are bound to follow the said binding ratio. Therefore, the order of the learned Judge found in paragraph 9 of the order to that extent is not legal and proper." the Hon'ble Court has clearly stated that the minimum requirement is a notice to the Government servant. In this case, admittedly, neither in the reference nor in the impugned order , any where any mention is made about the notice prior to the order of recovery. It is also pertinent to mention that the recovery is not based on any mis-representation made by the petitioner and since, the recovery order has been made without basic notice, the impugned order suffers from lack of notice which is against the Principles of Natural Justice and violates the rights of the petitioner. 6. With the above observations, writ petition is allowed and the impugned order passed by the Deputy Director (Hydraulics) is set aside and the matter is remitted back to the said authority for considering afresh, after issuing the show cause notice seeking for https://hcservices.ecourts.gov.in/hcservices/ recovery and after getting the reply, the orders will be passed in accordance with law as early as possible. Consequently, the connected application is closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kj To The Deputy Director (Hydraulics), Institute of Hydraulics and Hydrology Poondi, Thiruvallur District. RV(CO) km/20.5. W.P. No. 42381 of 2006 in O.A. NO. 7547 of 1999 https://hcservices.ecourts.gov.in/hcservices/