Bhagyalakshmi vs The Government of Tamil Nadu

M.M. Sundresh, J.—The petitioners herein are the legal heirs of the deceased Government Servant viz., K.Venkatesan, who retired from service on 28.02.2006. The first petitioner is the wife and the other petitioners are the children of the deceased.

The first petitioner''s husband viz., K.Venkatesan (since died) was working as Headmaster in the Government Adi Dravidar Welfare High School, Kappur, Villupuram District at the time of his retirement on 28.02.2006. By the proceedings dated 01.09.1997, the third respondent has passed a detailed order by stepping up the pay of the petitioner by taking note of the salary received by one V.Periasami, who was junior to him. Thereafter, based upon the audit objection, the earlier order passed on 01.09.1997 was reviewed and ordered recovery of the additional salary paid to the first petitioner''s husband. But the said order has not been served on the deceased employee. The first petitioner''s husband was allowed to retire on 28.02.2006 by the proceedings of the second respondent. In pursuant to the proceedings of the fourth respondent dated 18.09.2007, a recovery was sought to be made on the gratuity amount accrued to the petitioners. Thereafter, the petitioners have come forward to file the present writ petition challenging the order of the third respondent dated 12.04.2001 and the subsequent order dated 18.09.2007 passed by the fourth respondent.

The learned counsel appearing for the petitioners submitted that the order impugned dated 12.04.2001 has not been given effect to and it has not been served on the deceased employee. The said order has been passed without affording an opportunity and therefore, the same is a nullity in the eye of law. Inspite of the order passed, the deceased employee was allowed to retire. The recovery was sought to be made only in the order dated 18.09.2007. Considering the very same issue, this Court in W.P.No. 13385 of 2009 dated 22.01.2010 has allowed the writ petition as prayed for. By applying the said decision, the reasons assigned in the impugned order dated 12.04.2001 cannot be sustained in the eye of law even on merits. A further submission has been made that there is no fraud or misappropriation committed by the deceased employee and the recovery is sought to be made after more than 10 years, that too, after the retirement of the employee concerned.

Per contra, the learned Government Advocate, based on the counter affidavit filed, submitted that by the earlier order dated 01.09.1997 the pay of the deceased employee has been fixed wrongly. It was rectified by subsequent impugned order dated 12.04.2001. Therefore, the recovery is rightly sought to be made and hence, no interference is required.

On 01.09.1997, the third respondent has passed a detailed order on a consideration of the entire material on record. The said order was reviewed based upon the mere objection raised by audit. Admittedly, the deceased employee has not been heard. The order impugned has got civil consequences. There was no occasion to the deceased employee to challenge the order impugned, as it was also not given effect to then. He was allowed to retire without any restriction. It is only in pursuant to the order dated 18.09.2007, recovery was sought to be made. Considering the very same issue, this Court in W.P.No. 13385 of 2009 dated 22.01.2010 was pleased to hold as follows:

"12. Having considered the submission the learned counsel for the petitioner, it is clear that prior to 01.06.1988, the posts of Secondary Grade Teacher the Primary School Headmaster were treated as one and the same and no seniority was maintained for the post of Primary School Headmaster and such seniority came to be fixed for the first time during 1989. If that be the case, the second respondent was justified in issuing the proceedings dated 12.07.1989 for the purpose of stepping up of pay of seniors on par with Juniors and such re-fixation is also in accordance with FR 27(2) when the petitioner having been granted such benefit of higher pay that is, by stepping up of pay on par with Juniors with effect from 01.07.1988 the same cannot be denied after a lapse of nearly 11 years on the ground of audit objections."

The ratio laid down therein is applicable to the case on hand. There is absolutely no reason as to why appropriate action has not been taken at the earliest point of time. The employee is also no more. Therefore, considering the above said fact, this Court is of the view that the order impugned cannot be sustained. It is not as if the employee has committed any fraud or misappropriation. Considering the same, the orders impugned in this writ petition are set aside and the writ petition is allowed. Consequently, a direction is issued to the respondents to release the amount of Rs. 3,08,982/- to the petitioners. However, this Court is not inclined to grant interest for the said amount ordered to be paid by the respondent. No costs. Consequently, connected miscellaneous petitions are closed.