@JUDGMENTTAG-ORDER
Honourable Mr. Justice D. Hariparanthaman
1. The petitioner was appointed as Higher Grade Teacher in Adi Dravidar Elementary School, Dharmanidhi, ArakonamTaluk on 19.09.1970. On
01.01.1971, he was upgraded as Secondary Grade Teacher. Later, he was promoted as Middle School Head Master (B.T. Grade) during the
year 1983. While so, the District Adi Dravidar Welfare Officer, Chengalpattu M.G.R District at Kancheepuram granted Selection Grade in the
cadre of Middle School Head Master with effect from1.1.1981 and Special Grade in the cadre of Middle School Head Master with effect from
1.1.1991 based onG.O.Ms.No. 1178, (Education Department) dated 22.12.1993 to the petitioner in his Proceedings K. Dis. 58696/96(J2),
dated 25.7.1996. Therefore, the petitioner was granted monetary benefits based on the aforesaid order dated 25.7.1996.Thereafter, the fifth
respondent passed the order dated 11.07.2001 for recovery of a sum of Rs. 1,13,592/-. The said order of recovery dated 11.7.2001 was passed
by the fifth respondent stating that the petitioner was erroneously granted benefits based on the order dated 25.7.1996 passed by the District Adi
Dravidar Welfare Officer, Chengalpattu M.G.R District at Kancheepuram and therefore, the excess payment of Rs. 1,13,592/- was paid to him.
The fourth respondent, the District Adi Dravidar Welfare, Kancheepuram served a proceeding in Na.Ka.No. 24369/98J.4, dated 29.4.1998 on
the petitioner along with the order dated 11.7.2001 passed by the fifthrespondent.
2. In such circumstances, the petitioner filed Original Application No. 4912 of 2001 to quash the orders dated29.4.1998 and 11.7.2001 of the
fourth and fifth respondents respectively.
3. While admitting the Original Application No. 4912 of2001, the Tamil Nadu Administrative Tribunal granted interim stay on 31.7.2001 for the
order of recovery. On abolition of the Tribunal, the said Original ApplicationNo. 4912 of 2001 was transferred to this Court and renumbered as
writ petition No. 27594 of 2005.
4. The respondents filed the counter affidavit refuting the allegations.
5. The learned counsel appearing for the petitioner contends that the impugned orders were passed without notice and without hearing the
petitioner and in violation of principles of natural justice. It is further contended that the order dated 25.7.1996 granting certain benefits was passed
by the fourth respondent on his own and not on the basis of any misrepresentation made by the petitioner. Hence, if there was any erroneous
fixation, the petitioner could not be blamed for the same and the order of recovery passed by the fifth respondent is bad and illegal.
6. It is also submitted that the order of recovery dated 11.07.2001 was passed based on the Audit Objection and the petitioner has not given such
objection based on which the recovery order was passed.
7. On the other hand, Mr. V. Vijay Shankar, learned counsel for the first respondent and Mr. V. Subbiah, learned Special Government Pleader for
the respondents 2 to 5submit that there was an erroneous fixation and therefore, excess amount was paid to the petitioner. Hence, there is no
infirmity in the impugned orders dated 29.4.1998 and 11.7.001 passed by the fourth and fifth respondents respectively.
8. I have considered the submission made by the learned counsel on either side.
9. The petitioner was granted certain benefits by the fourth respondent in the order dated 25.7.1996. The petitioner was granted Selection Grade
in 1981 and Special Grade in 1991 retrospectively and the monetary benefits were also paid to him on the basis of G.O.Ms.No. 1178,(Education
Department) dated 22.12.1993. While so, the fourth respondent passed the order dated 29.4.1998 based on the Audit Objection stating that the
benefits granted in the order dated 25.7.1996 are not proper and hence, he sought to cancel the same. Consequent to the said order dated
29.4.1998, the order of recovery dated 11.07.2001 was passed by the fifth respondent. However, the said order dated 29.4.1998 was not
communicated to the petitioner. The order dated 29.4.1998 of the fourth respondent was passed based on the Audit party''s report dated
4.3.1998.The report of Audit party was also not furnished to the petitioner. The petitioner was also not heard before passing of the order dated
29.4.1998. Thus the order dated29.4.1998 was passed in blatant violation of principles of natural justice.
10. It is well settled that no adverse order could be passed resulting in civil consequences without hearing the aggrieved person. In this case, the
order dated 29.4.1998was passed without hearing the petitioner. Consequently, the order dated 11.7.2001 was passed by the fifthrespondent for
recovery of Rs. 1,13,592/- and at that time only, the order dated 29.4.1998 was furnished to the petitioner.
11. In paragraph 8 of the counter affidavit filed by the fourth respondent, the aforesaid facts are admitted. Paragraph 8 of the counter affidavit is
extracted hereunder.
With regard to the averments made in para VI(5) of the petition are concerned, I submit and deny the allegations contained in this para as untrue
and incorrect. I submit that it is wrong to say that the said order of recovery dated 29.4.1998 was communicated to the applicant only on
23.7.2001. I submit that the selection grade and special grade to the petitioner have been wrongly sanctioned and the same has been pointed out in
the departmental audit. I submit that, as such, the irregular sanction of the selection grade and special grade to the petitioner made in the
proceedings dated 25.7.1996 has been rectified as per the proceedings dated29.4.1998 of this respondent by canceling the same and by ordering
recovery of the arrears wrongly paid to the petitioner. I submit that the order dated 29.4.1998 of this respondent is legally and constitutionally valid
and is not liable to be quashed, as alleged.
12. In the meantime, the petitioner also retired from service in the year 2006 and he was permitted to continue in the service till the end of the
academic year.
13. The Division Bench of this Court in D. Palavesamuthu Vs. The Tamil Nadu Administrative Tribunal, held that if the refixation was not made
based on any misrepresentation, there cannot be any recovery from the Employee. The relevant passage from paragraph 6 of the said order is
extracted hereunder.
We are of the view that the course and method adopted by the Tribunal cannot be appreciated in the case of the petitioner. Even if it is accepted
for the argument sake that salary of the petitioner is fixed in a wrong scale of pay, it is the fault committed by the Department and their Officers, for
which the petitioner should not be penalized after a lapse of number of years that too after retirement of the petitioner.
14. The above said judgment is squarely applicable to the facts of this case. As stated above, in the case on hand also, the petitioner has already
retired from service.
15. In view of the aforesaid reasons, the impugned orders dated 29.4.1998 and 11.07.2001 of the fourth and fifth respondents respectively are
liable to be quashed and the same are quashed.
16. The writ petition is allowed on the above terms. No costs.