IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 23/03/2006
Coram
The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR
Writ Petition No.24861 of 2005
S. Chockalingam ... Petitioner
-Vs-
1. Government of Tamil Nadu,
rep.by its Deputy Secretary,
Labour and Employment (T-2) Department,
Secretariat,
Chennai-9.
2. The Principal,
Government Industrial Training Institute,
Karaikudi-5,
Sivagangai District. ... Respondents
This writ petition came to be numbered by way of transfer of
O.A.No.3959 of 2002 from the file of Tamil Nadu Administrative Tribunal with a
prayer to issue a writ of certiorarified mandamus calling for the records
pertaining to the impugned order made by the first respondent dated 24.4.2002
bearing No.27007/T-2/2000-14, quash the same and consequently direct the first
respondent to sanction the remaining amount of pay of Rs.156.40 treating it as
a special or separate pay from the date of petitioner's re-employment as
Office Assistant in the office of the second respondent i.e, 14.7.1983 for the
purpose of refixation of pay at Rs.796.40 with effect from 14.7.1983.
!For Petitioner : Mr.T.K.Kulasekaran
^For Respondents : Mrs.D.Malarvishi,
Government Advocate
:O R D E R
Prayer in the writ petition is to quash the impugned order of the
first respondent dated 24.4.2002 bearing No.27007/T-2/2000-14 and direct the
first respondent to sanction the remaining amount of pay of Rs.156.40 treating
it as a special or separate pay from the date of petitioner’s re-employment as
Office Assistant in the office of the second respondent i.e, 14.7.1983, for
the purpose of re-fixation of pay at Rs.796.40.
2. The brief facts necessary for disposal of the writ petition as
stated in the affidavit filed by the writ petitioner are that the petitioner
was appointed as a Soldier in the Indian Army on 25.5.1968 and after 15 years
of his unblemished record of service, he was discharged from the Army on
1.6.1983. At the time of his discharge from Army, his last drawn salary was
Rs.796.40. Petitioner was re-employed in the Government Industrial Training
Institute at Karaikudi, Sivagangai District on 14.7.1983 as an Ex-Serviceman.
Petitioner even though received Rs.796.40 as his last drawn salary, the second
respondent originally fixed his salary at the rate of Rs.640/- per month with
usual allowances. According to the petitioner, the said action being contrary
to the Government orders, petitioner submitted a representation to the second
respondent to re-fix his scale of pay at the rate of Rs.796.40 per month on
the basis of his last drawn salary at the time of his discharge from the
Indian Army.
3. It is the case of the petitioner that G.O.Ms.No.847 Finance (
Pension) Department, dated 7.10.1983 clearly states that when the Exservicemen
are re-employed in civil services, their salary should be fixed on the basis
of their last drawn salary. It is the further case of the petitioner that one
A.Dharmarajan, Record Clerk, who was an ExServiceman, on his re-employment as
Record Clerk at the Government Industrial Training Institute, Paramakudi, was
given pay protection with effect from his date of re-employment, i.e, from
13.1.1984 by the proceedings of the Principal, Government Industrial Training
Institute, Paramakudi in his proceeding in Rc.No.7068/A/91, dated –.2.1992.
The said re-fixation was made to the said A.Dharmarajan based on Government
orders.
4. It is further stated by the petitioner that his last drawn
salary was verified from the Madras Regiment, Abhilekh Karyalaya, Wellington,
Nilgiris and the said Office by letter dated 23.3.1994, certified petitioner’s
last drawn salary as Rs.796.40 and stated that the said last drawn salary can
be taken into consideration for fixation of pay at his civil service.
Pursuant to the said certificate, the second respondent by order dated
3.7.1997 sanctioned additional amount of Rs.156.40 to the basic pay of the
petitioner, so as to reach the total pay of Rs.796.40. The petitioner was
paid the arrears of salary from 14.7.1983.
5. Further case of the petitioner is that the second respondent
sent the proposal to the first respondent for ratification and the first
respondent by letter No.27007/TD-2/2000-14 dated 24.4.2002 ordered that the
difference in pay of Rs.156/- sanctioned from 14.7.1983 cannot be paid to the
petitioner as special pay or personal pay and the petitioner is eligible to
get pay scale of Rs.250/- with usual allowances and that the excess amount
paid to the petitioner shall be recovered. The said order of the first
respondent is challenged by the petitioner in O.A.No.3959 of 2002 before the
Tamil Nadu Administrative Tribunal, which was subsequently transferred to this
Court.
6. The Tribunal, while admitting the original application,
granted interim stay of recovery by order dated 8.7.2002 and subsequently the
stay order was extended until further orders on 26.7.2002.
7. The respondents have filed a counter affidavit wherein it is
admitted that on the date of discharge of petitioner from the military
service, he was receiving Rs.796.40 and that the petitioner was sanctioned
only Rs.640/- on his re-employment. The difference of Rs.156.40 was paid to
the petitioner from 14.7.1983 as per petitioner’s request and there is no
provision to include this difference in the petitioner’s pay and therefore the
Government ordered recovery of the said amount. It is further stated in the
counter affidavit that there is no provision to fix the pay and allowances of
an Ex-Serviceman at the time of his re-employment in civil services,
equivalent to his total emoluments last drawn by him and hence the impugned
order is passed based on the rules. As the petitioner is not eligible to get
the enhanced pay as per the rules, there is no necessity to give any notice or
opportunity of hearing to the petitioner before ordering recovery of the said
amount.
8. The learned counsel appearing for the petitioner argued that
the petitioner retired from the service as on 28.2.2006 and the order of the
first respondent is contrary to the sanction order passed by the second
respondent as well as the Gover ers. The learned counsel further submitted
that the petitioner being an Ex-Serviceman, is legally entitled to get his
last drawn salary on re-employment and that the first respondent has not given
any reason to cancel the sanction order passed by the second respondent.
Learned counsel also argued that the petitioner was not given any notice or
opportunity of hearing before ordering cancellation of the sanction order and
order of recovery and thus the principles of natural justice is thoroughly
violated in this case. For all these reasons, learned counsel for the
petitioner sought to set aside the impugned order.
9. I have considered the rival submissions made by the learned
counsel appearing for the petitioner as well as the learned Government
Advocate for the respondents.
10. The points in issue are, whether the sanction of Rs.156.40
additionally to the basic pay of the petitioner by the second respondent is
valid and that whether the first respondent is entitled to cancel the said
order and order recovery without issuing any notice or opportunity of hearing
to the petitioner.
11. It is the specific case of the petitioner that the
ExServicemen, appointed in the civil services on re-employment basis are
entitled to get their salary fixed, taking note of their last drawn salary in
the military service. No rule was pointed out or Government Order was
produced, disentitling the petitioner to claim the last drawn salary, by the
first respondent. The same was not even stated in the counter affidavit. The
second respondent, who is the competent authority, by order dated 3.7.1997
duly re-fixed the petitioner’s scale of pay at the rate of Rs.796.40 with
effect from 14.7.1983 and also paid the arrears. The Madras Regiment Office,
by letter dated 23.3.1994 also certified that the petitioner’s last drawn
salary in the military service as Rs.796.40 per month.
12. During the course of arguments, the learned counsel for the
petitioner pointed out that one A.Dharmarajan was appointed as Record Clerk in
the Government Industrial Training Institute, Paramakudi, and his pay was
fixed based on his last drawn salary in the military service and the said
order is filed among the typed set of papers. Placing reliance on the same,
the learned counsel stressed that the action of the first respondent is
discriminatory and violative of principles of natural justice.
13. This Court on 2.2.2006, 13.2.2006, 16.2.2006, 23.2.2006,
2.3.200 6, 6.3.2006 and on 9.3.2006 adjourned the matter to find out as to
whether the said A.Dharmarajan was paid salary on his re-employment on the
basis of his last drawn salary in the military service and also to find out
the difference in the case of A.Dharmarajan to that of the petitioner. In
spite of giving adjournments on the above dates, no reply was forthcoming from
the Government Advocate appearing for the respondents. Therefore, it is
presumed that the first respondent has no answer to take a different view from
that of A.Dharmarajan’s case. Hence petitioner’s contention is to be accepted
as the action of the first respondent is violative of Article 14 of the
Constitution of India.
14. Further, petitioner was not given any notice or opportunity of
hearing before passing the impugned order of recovery. While ordering
recovery from the salary, petitioner’s civil rights are very much affected,
for which principles of natural justice is to be mandatorily followed. It is
also admitted in the counter affidavit that no notice or opportunity of
hearing was given to the petitioner. Hence the action of the first respondent
is in violation to Article 14 of Constitution of India and against the
principles of natural justice.
15. For the above reasons, the impugned order dated 24.4.2002 is
quashed and there will be a direction to the first respondent as prayed for.
The writ petition is allowed. No costs.
Index : Yes/No.
Website: Yes/No.
23-3-2006
vr
N. PAUL VASANTHAKUMAR, J.
Vr
To
1. The Deputy Secretary, Labour and Employment (T-2) Department,
Secretariat, Chennai-9.
2. The Principal, Government Industrial Training Institute,
Karaikudi-5, Sivagangai District.