L. Thanammal vs The Director

S. Nagamuthu, J.—The petitioner was working as the Warden in the Government Girls Hostel at Adumanai between September, 2003 and August, 2006. In the capacity of the Warden of the Hostel, the petitioner had to spent money for purchasing groceries, etc., for serving food to the hostel students. The petitioner also duly did so. Subsequently, Audit was conducted into the accounts of the said hostel for the period 2001-2002 to 2004-2005, during which it was found that the petitioner had spent a sum of Rs. 28,788/- in excess of the prescribed amount. In this regard, the second respondent by his proceedings in J1/65131/05, dated 29.05.2006, issued an order to the Headmaster of the School concerned to recover the said amount from the petitioner. That order was passed even without affording any opportunity. Therefore, the petitioner filed a writ petition in W.P.(MD) No. 6746 of 2007 before this Court, challenging the said order. By order dated 02.11.2007, this Court set aside the said order on the ground that before the order was passed, no opportunity whatsoever was given to the petitioner. However, this Court made it clear that it was open to the respondents to issue fresh notice to the petitioner calling for objections and then to pass orders, after affording sufficient opportunity.

Thereafter, the 2nd respondent by his proceedings in R.C.J5/21195/07, dated 25.01.2008, issued a show cause notice calling upon the petitioner to show cause as to why a sum of Rs. 28,788/- should not be recovered from her. The petitioner duly submitted her explanation on 15.02.2008, denying her liability. Her stand was that she spent the money only within the norms prescribed by the Department. Having considered the same, the second respondent by his proceedings in Na.Ka. No. J5/21195/07, dated 06.04.2009, had directed the 3rd respondent to recover the said amount from the petitioner. The third respondent, in turn, has passed a consequential order by her proceedings in Na.Ka. No. 49/2006, dated 08.06.2009, directing the petitioner to pay the said amount. Challenging the said order, the petitioner is before this Court with this writ petition.

I have heard the learned counsel for the petitioner and the learned Government Advocate appearing for the respondents. I have also perused the records, carefully.

In the counter filed by the 2nd respondent, it is stated that the petitioner had spent an excess amount than the norms prescribed in G.O. Ms. No. 191, Adi Dravidar and Tribal Welfare Department, dated 13.08.2003. But the petitioner contends that G.O. Ms. No. 191 does not put any ceiling in expenditure. According to her, it is only a guideline.

I have considered the above submissions.

Admittedly, on the earlier occasion, by order dated 29.05.2006, the second respondent issued an order for recovery. That order was set aside by this Court only on the ground that no opportunity whatsoever was given to the petitioner before ordering for recovery. That is why, a show cause notice was issued to the petitioner. The petitioner duly submitted her explanation. Even after that, without referring to the explanation offered by the petitioner and without affording any further opportunity, the impugned order has been passed. Thus, the impugned order, in my considered opinion, is arbitrary and the same violates Article 14 of the Constitution of India. Therefore, this order is liable to be set aside.

I make it clear that the impugned order violates the principles of natural justice and therefore the same cannot be allowed to sustain.

Normally, when an order of this nature is set aside by this Court on the ground that the said order had been passed without following the principles of natural justice, this Court would give liberty to the authorities to follow the procedure and then to pass fresh order. But, in this case, I am not prepared to follow the said course. The reasons for the same are many. First of all, as I have already pointed out earlier, when an order passed, without affording any opportunity, was set aside with a liberty to the respondents to pass order after following the procedure established by law, even after that the present impugned order has been passed, committing the very same mistake without following the principles of natural justice. Therefore, I am of the view that affording yet another opportunity may not in any manner be justifiable. Apart from that that, it is not a case of any grave misconduct like misappropriation. After all, the petitioner has admittedly spent money for preparing food and serving the same for the hostel students. It is not the case of the respondents that the petitioner had fabricated records without spending. Spending excess amount, going by escalation of price of groceries, etc., can be condoned. Therefore, at this length of time, I am of the view that granting liberty to hold fresh enquiry will only be prejudicial to the petitioner. Therefore, I am not inclined to grant any such liberty to the respondent.

In the result, the writ petition is allowed and the impugned order is set aside. No costs.