M. Panaiyadian vs The State of Tamil Nadu

T.S. Sivagnanam, J.—By consent the main writ petition itself is taken up for disposal. The prayer in the writ petition is for issuance of writ of

Certiorarified Mandamus to quash the order passed by the second respondent dated 10.01.2006, and consequently direct the respondents to pay

the petitioner''s gratuity amount without any recovery on the salary paid to the petitioner.

The facts leading to the filing of the writ petition is as follows:

The petitioner was functioning as the District Registrar (Audit) and attained the age of superannuation on 31.12.2005. Pursuant to Government

order No. 1455, while in service as Sub-Registrar Grade-I, the petitioner''s pay was refixed with effect from 01.01.1996, based on the

recommendations of the fifth pay commission and the District Registrar by order dated 20.04.1998, revised the petitioner''s scale of pay from

20.04.1998, from Rs. 6493/- to Rs. 7237/- along with allowances. Thereafter, pursuant to orders dated 29.02.1996, 01.01.1997 and

01.01.1998, the petitioner was granted an increment of Rs. 200/- by each order. The second respondent by proceedings dated 16.11.1998,

refixed the petitioner''s pay at Rs. 8,550/- with effect from 06.08.1998. The petitioner had drawn a sum of Rs. 10,475/- as on the date of the

superannuation i.e., 31.12.2005. Though, the petitioner attained the age of superannuation, he was not paid the gratuity and the same was

withheld, when, the petitioner requested for settlement of gratuity amount, the second respondent by the impugned order dated 10.01.2006,

revised and refixed the petitioner''s pay by cancelling the earlier orders dated 22.05.1998 and 16.11.1998. The correctness of this order is

assailed in the present writ petition

The learned Counsel appearing for the petitioner would contend that the second respondent has no jurisdiction to refix the petitioner''s pay, after

the petitioner was allowed to retire on superannuation on 31.12.2005. It is further contended that the petitioner''s pay or pension shall not be

reduced or altered to the petitioner''s disadvantage and the order is illegal. It is further contended that the second respondent mechanically acted on

the proceedings of the third respondent, when the third respondent had only sought for a clarification and to revise the orders, after a period of 18

years is wholly illegal and arbitrary. The petitioner relied on the decision on the Hon''ble Division Bench of this Court in D. Palavesamuthu Vs. The

Tamil Nadu Administrative Tribunal, .

The learned Government Advocate appearing for the respondents 1 and 2 by placing reliance on the counter affidavit would contend that after

the petitioner attained the age of superannuation on 31.12.2005, the pension proposal was forwarded to the third respondent, who had made a

remark that there was a difference in the petitioner''s pay fixation and pointed out the amount of difference and based on which the impugned order

was passed. It is contended that the increment was erroneously given to the petitioner and the impugned order itself is a notice. It is further stated

that the petitioner had given a consent.

The learned Counsel appearing for the third respondent by relying on the counter affidavit would contend that while awarding Selection Grade

to the petitioner on 22.07.1995, in the post of Sub-Registrar Grade II, the second respondent did not follow the correct procedure in the matter of

fixation of pay, which resulted in higher rates of pay from 1995. It is further contended that the excess payment was on account of the wrong

procedure adopted by the second respondent and therefore, the recovery is justified.

Heard, the learned Counsels for the parties.

It is not in dispute that the petitioner attained the age of superannuation on 30.12.2005, and by Government order in G.O.(Rt). No. 1455,

Commercial Taxes Department, dated 30.12.2005, the petitioner was permitted to retire from the service on 31.12.2005. Prior to his retirement

no action was initiated by the department with due intimation by the petitioner, proposing any recovery of excess payment of salary. For the first

time, by the impugned order dated 10.01.2006, the recovery has been ordered by cancelling the earlier orders of the District Registrar, Namakkal

in proceedings No. 1093/A1/98, dated 22.05.1998 and the proceedings of the Deputy Inspector General of Registration, Salem in No.

5500/A/98, dated 16.11.1998. Further, prior to the impugned order, the petitioner was not given any show cause notice and was not afforded any

opportunity to put forth his defence. However, the impugned order is on account of an objection/remark made by the office of the third

respondent. Therefore, it is clear that the respondents 1 and 2 did not unilaterally take any action, but the impugned order is as a result of a

objection pointed out by the third respondent. It is to be noted that by the impugned order, the orders dated 22.05.1998 and 16.11.1998 have

been cancelled, after nearly a period of 18 years. Even as per the averments made in the counter affidavit filed by the third respondent, the excess

payment to the petitioner has been made, since the second respondent did not follow the correct procedure in pay fixation and nowhere in the

counter affidavit, it has been stated that the petitioner was responsible for such wrong fixation. The Hon''ble Division Bench in the case of D.

Palavesamuthu, referred supra, after relying on the decision of the Hon''ble Supreme Court held as follows:

It is worthwhile to refer the judgment of the Supreme Court in the case of Sahib Ram v. State of Haryana 1995 AIR SCW 1780. In that case

the Principal of College granted relaxation while fixing the revised pay scale of a Librarian. After finding that the Principal erred in granting him the

relaxation, their Lordships have concluded,

It is not on account of any misrepresentation made by the appellate that the benefit of higher pay-scale was given to him but by wrong construction

made by the Principal for which the appellant cannot be held to at fault. Under these circumstances, the amount paid till date may not be recovered

from the appellant....

The learned Counsel appearing for the petitioner has also brought to our notice that the Department has not issued notice or given opportunity

before ordering recovery, but proceeded merely on the basis of the report of the Accountant-General. According to him, reduction of pay and

recovery of pay without hearing him are illegal. In support of the said argument, he relied on the Judgment of the Supreme Court in the case of

Divisional Superintendent, Eastern Railway, Dinapur and Others Vs. Shri L.N. Keshri and Others, . In similar circumstances, their Lordships have

held that,

The appellants having fixed the scale and confirmed the respondents could not reduce the scale without giving any opportunity to the respondents

to be heard. Furthermore, the respondents on confirmation became entitled to rights to the post and to the scale of pay fixed by the Board.

The said decision is applicable in all force to the case on hand. The above principles and material aspects have not been considered by the Tribunal

and the Tribunal has committed an error in dismissing the application of the petitioner.

The ratio of the above decision is squarely applicable to the facts and circumstances of the present case, as in this case also the third respondent

has pointed out that the excess payment is on account of wrong procedure adopted by the second respondent. Further, the petitioner was also

permitted to retire from service of superannuation on 31.12.2005, and the impugned order of recovery was passed without affording any

opportunity to the petitioner and by retrospectively canceling orders, which were passed 18 years prior to the impugned order. Hence, the

impugned order is unsustainable and is liable to be set aside.

The learned Counsel appearing for the petitioner would submit that after the filing of the writ petition, the department refused to release the

gratuity and compelled the petitioner to remit the excess amount paid, therefore, the petitioner without prejudice his rights and under protest had

deposited a sum of Rs. 77,000/-, which is stated to be alleged excess payment to the petitioner and prays for appropriate direction to release the

amount.

In the result, the writ petition is allowed and the impugned order is set aside and the second respondent is directed to release the amount

retained from the petitioner''s gratuity within a period of three weeks from the date of receipt of a copy of this order. Consequently, connected

miscellaneous petitions are closed. No costs.