K. Rajagopal Vs The State of Tamil Nadu and Others

@JUDGMENTTAG-ORDER

V. Dhanapalan, J.@mdashThis writ petition is filed by the Petitioner challenging the orders of the 4th Respondent made in proceedings No. AG(A&E)/PENPO9/2/R31-335/RVN/2003-2004/3348 as well as the consequential order of the 5th Respondent dated 28.08.2003 made in RF.18/2265/03(A) seeking to quash the same and for a direction to the Respondents for fixation of pension on the basis of scale of pay received on 31.05.2002 and for reimbursement of the amount of Rs. 2,43,423/- (Rupees two lakhs forty three thousand four hundred and twenty three only) withheld by the 4th Respondent from the account of the Petitioner.

2. Heard Mrs.G. Thilakavathi, learned Counsel for the Petitioner, Mr. S. Gopinathan, learned Additional Government Pleader appearing for the Respondents 1,2,3 and 5 and Mr. T. Ravikumar, learned Counsel appearing for the 4th Respondent.

3. The case of the Petitioner is that he was appointed as elementary school Headmaster in the Department of District Adi Dravida and Tribal Welfare on 14.09.1964. The posts of Headmaster of elementary school and the Secondary Grade Teacher were of the same qualifications till the year 1979. The only difference was that the person holding the post of Headmaster of elementary or middle school was given the benefit of special pay allowance. In the G.O. Ms. No. 784 (Rural Development Local Administration Dept.) dated 14.5.1979, the guidelines were issued to the effect that teachers working in Panchayat Union Schools were required to be considered for promotion as Headmaster of the Primary schools and Middle schools from that of the Secondary Grade teachers. Therefore, the posts of Headmaster of the Primary and Middle Schools were treated as promotional posts under the provisions of the Tamilnadu Panchayat Union Act, in terms of the above G.O and a Secondary Grade teacher who acted as Headmaster as on 01.10.1970 by virtue of seniority was allowed to continue as Headmaster in the Middle school and his pay was refixed in accordance with the Government order. Even though the above Government orders were issued by the Education Dept., of the Government of Tamilnadu, the Welfare schools which were established under the Department of 2nd Respondent also adopted the said Government orders by way of either independent Government orders or by way of adoption, Government orders that were issued by the 2nd Respondent department. Therefore, the Department of Education issued G.O. Ms. No. 122 dated 22.01.1979 extending the concession of the benefits granted to the schools functioning under the Education department and thereby the same was extended to the Welfare schools under the 2nd Respondent.

4. While so, on 22.12.1993, the Education Department issued G.O. Ms. No. 1178, giving the benefit of selection grade and special grade scale of pay to such of those in service of Elementary/Middle School Headmasters who had completed 10 years to 20 years of service respectively. The said benefits of Selection Grade and Special Grade were also extended to the Welfare Schools functioning under the 2nd Respondent from 30.07.1995 and the Petitioner was given the benefit of Special Grade under the orders of the 3rd Respondent dated 29.7.1995, in its proceedings in Pa. Mu.114374/95 (Ya.14) and thereafter the 3rd Respondent granted benefit of the Special Grade scale of pay to the Petitioner with effect from 1.10.1984 and also monetary benefits and since then he was functioning as Elementary School Headmaster. Thereafter during the year 2000, the Petitioner was promoted as Middle School Headmaster and at last he was placed in the time scale of pay at Rs. 9100-275-14050 and he retired from service on reaching the age of superannuation on 31.05.2002.

5. While that being the position, the 4th Respondent in the impugned proceedings dated 26.2.2003, made in P.P.O. No. C.104197/EDG, directed the 5th Respondent, to withhold the excess amount paid on the basis of the alleged higher scale of pay, construing the same as an excess payment and determined the quantum liable to be recovered as Rs. 5,05,960/- (Rupees Five lakhs five thousand nine hundred and sixty only) as endorsed in the order dated 30.07.2003. In the impugned orders of the Respondents, they have withheld the Death-cum-Retirement Gratuity due to the Petitioner at the time of his retirement from service, a sum of Rs. 1,31,401/- (Rupees One lakh thirty one thousand and four hundred and one only) and the balance of Rs. 4,33,998/- (Rupees Four lakhs thirty three thousand and nine hundred and ninety eight only) was determined to be withheld in equal installments of Rs. 1,575/- from and out of the pension payable to him as per the impugned orders. By the consequential proceedings of the 5th Respondent, a total sum of Rs. 2,03,363/- was withheld from the DCRG payable and a balance of Rs. 2,30,635/- was determined to be withheld as per the following details:

However, the following amount has been recovered from the Petitioner under the guise of alleged erroneous scale of pay granted to him.

The Petitioner prays for quashing the above impugned order in so far as the withholding of the amount Rs. 2,43,423/- as detailed above on the ground, that the order is volatile of Article 14 and the service conditions under which the Petitioner worked the orders that the 4th Respondent withholding the amount is misconceived and the conclusion is arrived at without affording an opportunity of hearing or notice to the Petitioner. Though the Respondents have received the Rule Nisi in the month of November, till date, no counter is filed by them.

6. The first and foremost contention of the learned Counsel for the Petitioner is that the impugned orders have suffered with legal infirmity for the reason that the pay fixation refixed and the order of recovery made in the impugned proceedings are without notice and without giving an opportunity of hearing to the Petitioner. She would further contend that the applicability of the Government orders is not properly looked into in the case of the Petitioner and therefore, it is in violation of the Article 14 of the Constitution. Learned Counsel for the Petitioner has pointed out that in the service law jurisprudence, no gratuity amount could be recovered or adjusted.

7. On the other hand learned Government pleader after going through the documents annexed in the typed set of papers, would submit that the 5th Respondent has ordered the recovery in view of the audit objection raised by the 4th Respondent in the proceedings dated 30.07.2003 and when such an objection is raised by the Accountant General of Tamilnadu it is for the 5th Respondent to obey the order and hence the impugned orders.

8. Mr. T. Ravikumar, learned Counsel for the 4th Respondent on instruction and upon perusing the material documents and the orders of the 4th Respondent would contend that as per the Government orders the pay has to be fixed by the Competent Authority but in this case, the pay was fixed contrary to the rules and therefore the pension payable to the Petitioner has to be revised and accordingly they raised the objection and it is the duty and responsibility of the 4th Respondent to see and proceed in accordance with the orders of the Government and if anything is contrary, it is their obligation to determine and direct the authorities concerned to revise the pay as well as the pension.

9. I have heard the learned Counsel on either side and perused the material documents annexed in the typed set of papers and the Government orders referred above.

10. Learned Counsel for the Petitioner has argued that the determination made by the Respondents and the related orders issued by them are without notice and without opportunity of hearing, are clear violation of principles of natural justice. Learned Counsel for the Petitioner relied upon the judgment of R. Premakumari Vs. State of Tamilnadu, where it is held as follows:

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 Vs. State of Haryana and Others, . 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.

10. Under the above circumstances, we hereby direct the second Respondent to give a notice to the Appellant with reference to the recoveries to be made and justification for the same within a period of four weeks from the date of receipt of a copy of this order and personal hearing may be granted by the second Respondent. After hearing the objections of the Appellant, the second Respondent is directed to pass a speaking order and communicate the same to the Appellant. Till decision is taken, the Respondents are restrained from making any recovery of any amount from the salary of the Appellant

11. Admittedly, the Petitioner was the Headmaster appointed by the 3rd Respondent on 14.9.1964, which post carries the benefit of special pay. The positions of the Headmaster, Elementary school and Secondary Grade teachers are treated as one and the same. The posts of Headmaster of the Primary and Middle schools were treated as promotional posts in view of the G.O. Ms. No. 784, dated 14.5.1979. The Petitioner was given promotion based on the above government orders and the same was extended to the 2nd Respondent department vide G.O. Ms. No. 122 dated 22.01.1979 in the year 2000, he was promoted as Middle school Headmaster.

12. It is seen that vide G.O. Ms. No. 1178, dated 22.12.1993, the benefit of fixing the Selection Grade and Special Grade on completion of 10 years and 20 years came into implementation and the same was extended to the Petitioner as well and proceedings were also issued by 3rd Respondent on 29.07.1995 fixing the scale of pay fixed at Rs. 9100-275-14050/- and the Petitioner retired from service on reaching the age of superannuation on 31.05.2002.

13. While so, the 4th Respondent passed an order on 26.2.2003 directed withholding of the excess amount paid on the basis of the alleged higher scale of pay fixed to the Petitioner construing that the fixation was an excess payment and determined the quantum and also directed the 5th Respondent to recover Rs. 5,05,960/- (Rupees Five lakhs five thousand and nine hundred and sixty only) accordingly the 5th Respondent proceeded to recover the arrears by withholding the amount of Rs. 2,43,423/- by order dated 30.07.2003, which is challenged by the Petitioner.

14. The main grievance of the Petitioner is that the determination and the quantum arrived at are without any basis and contrary to the fixation in accordance with Government order in G.O. Ms. No. 1178 dated 22.12.1993.

15. Any order passed adverse to the employee could be passed only after issuing notice and opportunity of hearing. On a perusal of the impugned orders and the proceedings of the 4th Respondent making the audit objection and the proceedings of the 5th Respondent making the recovery of the amount, what transpires is that the said proceedings are without notice and opportunity of hearing to the Petitioner. In the decision relied upon by the Petitioner in the case of R. Premkumari v. State of Tamil Nadu referred above, this Court following the ratio laid down by the Hon''ble Supreme Court in Sahib Ram Vs. State of Haryana and Others, wherein it has been held that even if a wrong decision has been made by the authorities when recovery of the same is sought to be made, minimum principle of natural justice has to be followed and as such in the employee is entitled for notice and after hearing the objection of the concerned employee then there must be a speaking order communicating the same to the employee concerned.

16. Therefore, the orders passed by the Respondents suffer from legal infirmity and are in violation of principles of natural justice and the same are set aside. The writ petition is allowed and the matter is remitted to the Respondents to follow the procedure by issuing proper notice and affording an opportunity of hearing in person to the Petitioner and pass appropriate orders in accordance with law. No costs. Connected miscellaneous petition is closed.