K.R. Jawahar vs The Accountant General (Accounts and Entitlements) and The Assistant Elementary Educational Officer

V. Dhanapalan, J.—The petitioner has come up with the present writ petition challenging the impugned order of recovery proceedings

passed by the first respondent in his proceedings dated 20.12.2004.

According to the petitioner, he was appointed as Higher Grade Teacher on 07.08.1970. He was promoted as Secondary Grade Teacher on

01.09.1986 and further promoted to the post of Head Master on 18.06.2000. He retired from service on 31.10.2003 as Headmaster, Panchayat

Union Elementary School, Nallsellipalayam, Kodumudi Block, Erode District.

It is the further case of the petitioner that his junior Mr. V.N. Thangavelu was appointed as Higher Grade Teacher on 05.10.1973, promoted as

Secondary Grade Teacher on 02.10.1987 and as Headmaster on 16.06.2003. He was drawing less than the petitioner till 01.04.1978. The

petitioner''s pay was Rs. 170/- and his junior was drawing Rs. 166/-. On revision, the petitioner''s pay was fixed at Rs. 305/-. His junior was

granted one increment. On account of the grant of the said increment, his pay was also fixed at Rs. 305/- in the revised scale of pay as on

01.04.1978. In the IV Pay Commission, the petitioner''s scale of pay was fixed at Rs. 655/- with effect from 01.10.1984 and his junior''s pay was

also fixed at Rs. 655/-. The V pay commission has further revised the pay scale and for the petitioner it was Rs. 1230/- with effect from

01.06.1988 and the petitioner''s pay was fixed in the Special Grade Scale of pay with effect from 27.08.1992 at Rs. 1440/-, applying Rule 4(3) of

the Tamil Nadu Revised Pay Scales Rules, 1989. However, when the same rule was applied to his junior on 19.11.1993 on account of the grant

of Special Grade Scale, his junior''s pay was fixed at Rs. 1,500/- and that pay was made as per the orders of the Government in Govt. Letter No.

77106/PC2/01, Finance, dated 01.03.1978. Thus, the junior began to draw higher pay than the petitioner with effect from 19.11.1993 on account

of grant of Special pay as per the Rules. Therefore, his pay was equated on par with his junior. Thereafter, he retired from service on 31.10.2003.

The petitioner was allowed pension and commutation of pension on the basis of the last pay drawn by him. However, he has not been paid the

DCRG and the DCRG has been withheld on instructions from the Accountant General (Accounts and Entitlements) Tamil Nadu, the first

respondent herein.

On 20.12.2004, the first respondent has issued the impugned order, directing the Assistant Elementary Educational Officer, Erode to cancel the

pay fixation made on par with his junior and send the recovery details of excess paid pay and allowances for authorising the payment of the

DCRG. The first respondent had written to the Assistant Elementary Education Officer on 27.02.2004 stating that Mr. V.N. Thangavelu,

petitioner''s junior was drawing higher pay on account of the sanction of one increment for family planning operation and therefore, his pay should

not have been fixed on par with his junior. However, even after the said increment, his junior was not drawing higher pay than the petitioner.

Therefore, as per the Rules, the pay parity has been set right by the respondents and his pay has been equated on par with his junior as per the

Rules. The second respondent also sent a comparative statement showing the details of the pay fixation. However, the first respondent has not at

all considered the statement given by the second respondent and issued the impugned order. The petitioner has not been paid DCRG and steps

have been taken to reduce the pension and effect the recovery of pay already granted to him. Therefore, the petitioner is before this Court

challenging the order of recovery dated 20.12.2004.

Heard Mr. P. Mohanraj, learned Counsel appearing for the petitioner, Mr. S. Udayakumar, learned Additional Central Government Standing

Counsel for the first respondent and Mr. N. Senthil Kumar, learned Additional Government Pleader for the second respondent.

The learned Counsel for the petitioner would contend that the impugned order of recovery proceedings has been passed without following the

procedure contemplated under the Rules and not adhering to the principles of natural justice. No notice has been issued and no opportunity of

hearing was given before passing the impugned order. On this sole ground, the impugned order has to be set aside. In support of his contention,

the learned Counsel for the petitioner relied on a decision of this Court in the case of A. Chandra Bose, S. Raju and D. Michael Vs. The Executive

Engineer, Distribution, Tamilnadu Electricity Board, , wherein in paragraph 16, it is held as follows:

A perusal of the entire proceedings and commutations shows that the orders of recovery were not passed in accordance with the procedures

contemplated in law. In my opinion, the impugned orders suffer from legal infirmities for the following reasons:

(i) Since the Board Office Audit Branch raised objections to the payment of Daily Allowance to the petitioners from May 1993 to April 1994,

impugned orders of recovery of Daily allowance were passed without notice and the petitioners were not given an opportunity to submit their

explanation as to why the Daily Allowance should not be recovered from them.

(ii) The petitioners agreed to go on deputation immediately as required by the department on assurance of payment of daily allowance. Though

they were paid the daily allowance as promised, the question of recovery of daily allowance paid to them based on the audit is not proper, since

the services of the watchmen are essential considering the isolated area in which the stores is located as well as the worth of materials available in

the stores.

(iii) the orders of recovery passed by the respondent on the alleged ground of objections raised by the Board Office Audit Branch are

unsustainable inasmuch as the respondent has deputed them to Vaniankulam assuring payment of daily allowance and it is also not the case of the

respondent that the petitioners claimed allowance on their own and in the absence of any fault on their part, the recovery ordered to be made

without the procedure contemplated is unsustainable.

Per contra, the learned Counsel for the respondents submits that the statement given by the second respondent has been considered by the first

respondent and thereafter, they have initiated the proceedings for recovery.

I have carefully considered the submissions on either side and also perused the materials available on record.

It is seen from the record that no notice or opportunity of hearing was offered to the petitioner before passing the impugned order. It is a settled

legal principle that before proceeding with recovery, the respondents have to follow the procedures contemplated under the rules, by giving notice

to the person concerned, calling upon him to explain as to why the recovery proceedings should not be initiated against him. In the instant case, it

appears that the respondents have not followed the procedures by giving notice to the petitioner and also an opportunity of hearing before

proceeding to recover the amount. Therefore, it is clear that there is a violation of the principles of natural justice by the respondents. Thus, the

impugned order is passed in violation of the procedures contemplated under the law and for that reason, the impugned order cannot be sustained.

In view of the foregoing reasons, the impugned order, dated 20.12.2004 suffers from legal infirmity on the principles of natural justice and

therefore, it is set aside. However, it is open to the respondents to proceed in accordance with law, if there is any necessity to recover the amount,

after giving notice to the petitioner and an opportunity of personal hearing and then pass appropriate orders.

The writ petition is allowed with the above direction. No costs. Consequently, connected miscellaneous petition is closed.