Madras High Court
R. Elangovan And Ors. vs The Commissioner, Erode Municipality, ... on 22 November, 2007
Author: M. Chockalingam
Bench: M. Chockalingam
ORDER M. Chockalingam, J.
1. This order shall govern all the above six writ petitions. All these petitioners have challenged an order of recovery of excess payment of salary, passed by the first respondent Municipality on 6.12.2005.
2. The affidavits in support of the petitions and the counter affidavits are perused. The Court heard the learned Counsel on either side.
3. Concededly, all these petitioners were actually employed as Bill Collectors in the first respondent Municipality, and they were subsequently re-designated as Revenue Assistants. They were elevated to selection grade. While they were working so, pursuant to the passing of the G.O.Ms. No. 304, Government of Tamil Nadu, Finance (Pay Commission) Department, dated 28.3.1990, the monetary benefits were given to them with effect from 1.6.1988, and they were drawing the salary. Out of six petitioners, five have already retired. While the matter stood thus, there was an order passed by the first respondent on 6.12.2005 which is under challenge, stating that excess payment was received by them, and it has got to be recovered with effect from December 2005. Under the circumstances, they have brought forth these writ petitions.
4. The main contention put forth by the learned Counsel for the petitioners is that the order has got to be set aside for the reasons that they had no role to play either in the up gradation of the post or the payment of salary which, according to the first respondent Municipality, is in excess; that they have received it from 1990 onwards; that it was given with effect from 1.6.1988; that now, the order has been served in the year 2005, after a period of 17 years; and that under the circumstances, it would be nothing but an illegal order.
5. Added further the learned Counsel that in the instant case, it is true that it was the visitation of the civil consequences; but, not even one notice was served upon them to show cause why it should not be recovered; that in the instant case, the audit report, according to them, was the basis for the recovery; that it is made after a period of 17 years; and that all put together, it would suffice that the order has got to be quashed.
6. The Court heard the learned Counsel for the respondents on the above contentions.
7. After doing so and looking into the materials available, this Court is of the considered opinion that it has no option than to declare the order as illegal, and it has to be set aside. Firstly, selection grade benefits were given to the petitioners with effect from 1.6.1988 by virtue of G.O.304, Government of Tamil Nadu, Finance (Pay Commission) Department, dated 28.3.1990. It is pertinent to point out that either in the up gradation or in the payment of the salary from 1.6.1988 till the time of retirement, they had no role to play. Thus, at no stretch of imagination, it can be called as fraudulent act committed by the petitioners.
8. Secondly, in this case, they have been receiving the salary for the past 18 years. The basis for the order in question is the audit report given after a period of 17 years. This Court is at a loss to understand how on the basis of the audit report that too given after a period of 17 years, such an order could be passed.
9. Thirdly, it is true that it is actually visitation of the civil consequences pursuant to the order; but, not even a show cause notice has been given to explain the circumstances why it should not be recovered from them. Thus, it is a glaring case where the principles of natural justice have been offended. All put together, it would suffice to quash the impugned order. Accordingly, the orders passed by the first respondent against them, are quashed, and all these writ petitions are ordered. No costs. Consequently, connected WPMPs and WVMPs are closed.