E.R. Jeyakumari vs The Secretary to Government

T. Raja, J.—In all these writ petitions, the petitioners have challenged the impugned order dated 28.05.2014 passed by the Assistant Divisional Engineer, Highways Department (C & M), Tiruchendur, Thoothukudi District/3rd respondent directing recovery of the enhanced pay already paid to the petitioners from 01.04.2013 from their respective salaries.

The petitioners were appointed as Road Inspector Grade II through employment exchange. Their next avenue of promotion is Road Inspector Grade- I. They were granted enhanced grade pay for the Skilled Assistant Grade-II from Rs.2,000/- to Rs.2,400/-, since the revision of the said grade pay is applicable to the entry level trade posts in all the Government Departments including the local bodies on the basis of G.O.Ms.No. 325 Finance (Pay Cell) Department, dated 22.07.2013. While the petitioners were granted the benefit of G.O.Ms.No. 325, all of a sudden, without even issuing any notice whatsoever, the 3rd respondent passed the impugned orders directing recovery of the enhanced grade pay already granted to the petitioners from 01.04.2013. Challenging the said order on the ground that it is violative of principles of natural justice, the petitioners have come to this Court.

Records do not show that notices have been issued to the petitioners, calling upon them to submit their explanations as to why recovery should not be made. Courts have consistently held that recovery from the salary without giving show cause notice, violates the principles of natural justice. It is also trite law that when the pay of an individual is revised by the department on their own without there being any misrepresentation from the government servant, he cannot be penalised by the order of recovery that too without any notice. As regards refixation of pay and the consequential recovery without notice, it is useful to extract the following decisions:-

(i) In Babulal Jain Vs. State of M.P. and Others, , the Hon''ble Supreme Court on considering a case of recovery of excess payment made to an employee without any notice, who had retired on superannuation, held that the State was not correct in recovering the excess sum, even without any notice to the employee and further directed that the respondents herein to refund the amount recovered from the appellant therein, by duly following the principles of natural justice.

(ii) In A. Chandra Bose, S. Raju and D. Michael Vs. The Executive Engineer, Distribution, Tamilnadu Electricity Board, , a learned single judge, of this Court has quashed the recovery on the grounds of procedural irregularity, as well as for violation of principles of natural justice since no notice was given prior to the impugned recovery order.

(iii) In a decision in C.Perumal Vs. Secretary to the Government, State of Tamil Nadu, Municipal Administration and Water Supply Department, Chennai and Others reported in (2008) 5 MLJ 289, this Court has held that refixation of scale of pay and the consequential recovery, based on audit objections, without issuing a show cause notice to the individual is violative of the principles of natural justice.

In view of the above, the impugned orders of recovery dated 28.05.2014 are set aside and it is open to the respondents to strictly adhere to the principles of natural justice before passing any order of recovery and proceed further in accordance with law. The writ petitions are disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed.