Judgment :- 1. Heard Mr.S.Anbazhagan, learned counsel for the petitioner and Mr. B.Dhyaneswaran for Mr. V.Bharathidasan, learned counsel for the respondents. 2. A senior citizen after his retirement faced with a proceeding initiated by the 1st respondent for wrong fixation of pay and reduction of salary in the impugned proceedings dated 30.07.2000 vide order in PO.THU.NA.KA.NO.B10/32561/2000 and also the consequential reply given by the 2nd respondent on 20.12.2004, has filed this writ petition challenging both the orders and for a consequential direction to refix his pension. 3. The case of the petitioner, leading to the filing of this writ petition is as follows:- (i) According to the petitioner, he was working initially under the 1st respondent viz., the Commissioner of Chennai Corporation since 1963 upto 1971 as a Carpenter on casual basis. Thereafter, on 07.04.1971, he was appointed as a Hammerman in the Cattle Pound of Chennai Corporation and his scale of pay was fixed at Rs.800-1,150/-. In the year 1998, he was transferred to General Mechanical Engineering Department, where he retired from service on 30.06.2000. He claims that during his service, he earned a good record of service without any blemish. (ii) The Government of Tamil Nadu revised the pay scale of certain categories and passed orders in G.O.Ms.No.582, Finance (Pay Cell) dated 01.08.1992 based on official recommendations. As per the above Government order, the pay scale of Hammerman was revised from Rs.800 - 1150 to Rs.950 – 1500 with effect from 01.06.1988 notionally and monetary benefit was effected from 01.04.1992. Accordingly, his pay was revised and thereby he had the benefit of revision of pay from 01.04.1992. (iii) Whileso, in the year 1998, his pay scale was revised from Rs.950 – 1500 to Rs.800 -1150 without any notice and on enquiry he has been told that the officers have wrongly fixed his scale of pay as per the Government order and also that officers will clarify from higher officials and they will refix his pay scale. Based on the assurance given, he did not challenge the reduction of pay scale. But the officers failed to refix the pay scale till his date of retirement. (iv) After one month of his retirement i.e., on 30.07.2000, the 1st respondent had issued the impugned order thereby deducting a sum of Rs.40,712/- from his gratuity being the difference in salary due to reduction of pay scale. But the officers failed to refix the pay scale till his date of retirement. (iv) After one month of his retirement i.e., on 30.07.2000, the 1st respondent had issued the impugned order thereby deducting a sum of Rs.40,712/- from his gratuity being the difference in salary due to reduction of pay scale. When he approached the respondents personally to know the reason for deduction, the respondents without giving proper reasons made him to run from pillar to post for explanations. Therefore, on 07.12.2000, he made a detailed representation to the 2nd respondent and a copy of the same was sent to the 1st respondent and the Hon'ble Mayor of Chennai Corporation, to which the 2nd respondent has given a reply to him by stating that his pay scale was wrongly fixed as Rs.950 – 1500 instead of Rs.825 – 1200 and that the extra salary paid to him from 01.04.1992 to 30.04.1998 totalling about Rs.40,712/- was found as excess payment at the time of his retirement. Therefore, they have decided to deduct the said amount and that was certified by the audit report. (v) It is the case of the petitioner that the pay scale of Hammerman has been revised in the Government order dated 01.08.1992 and the said revision was applicable to all the departments. In the said Government order, the post of Hammerman figures at Sl.No.48 and 170. In both the places, the salary of Hammerman has been revised from Rs.825 – 1200 to Rs.950 – 1500 scale and accordingly the post of Hammerman has been in the scale of pay of Rs.950 – 1500. Hence he was entitled to such scale of pay. Even assuming that without admitting that the pay scale was wrongly fixed, the deduction cannot be effected from his gratuity, which is illegal and against the principles of natural justice. (vi) Further case of the petitioner is that he made a representation on 27.10.2004 to the 1st respondent requesting to reconsider his request to revise the pay scale and release the amount of Rs.40,657/-, which has been wrongly deducted. But the 1st respondent did not give any reply to him and the 2nd respondent vide his reply dated 20.12.2004 rejected the request of the petitioner for the same reason already given. But the 1st respondent did not give any reply to him and the 2nd respondent vide his reply dated 20.12.2004 rejected the request of the petitioner for the same reason already given. (vii) Due to the reduction of his pay scale from Rs.950 – 1500 to Rs.825 – 1200, his pension has been altered considerably and he being paid only a sum of Rs.2,050/- as pension. If his scale of pay was refixed at Rs.950 -1500, he will be entitled to higher pension amount. Therefore, the impugned proceedings are contrary to the provisions of law and the order of the respondents are arbitrary and unreasonable as they have been passed without notice and without affording an opportunity of hearing. Therefore, they are in violation of Article 21 of the Constitution of India. (viii) The action of the respondents in deducting the alleged excess amount paid from the petitioner's gratuity amount and the consequential reduction in pension which is the petitioner's life time savings arising out of his longstanding service is tainted with malafides and bad in law. (ix) According to the petitioner, when there was no fault on the part of him in fixation of the pay scale, the excess amount cannot be ordered to be recovered. challenging the said orders, the petitioner is before this Court. 4. The 1st respondent has filed a counter affidavit. In the counter, it is stated as follows:- (i) As per the Service Register entries, the petitioner was appointed as Hammerman in (C) Cattle Depot. During 1998, he was transferred to General Workship, M.E.Department, and was drawing in the scale of pay of Rs.1320 - 2040 as Special Grade Hammerman. He has retired from service on 30.06.2000 on superannuation. (ii) According to the 1st respondent, as per G.O.Ms.No.582, Finance (PC) Department, dated 01.08.1992, under the heading "General Workshop", the pay of Hammerman post has not been revised and as such his pay has not been revised as per the said Government order. iii) Further, according to the 1st respondent, the petitioner was working in Cattle Department where his scale of pay has been fixed in the Selection grade Hammerman post at Rs.950 – 1500 with effect from 01.06.1988 and subsequently revised at Rs.1200– 2040 with effect from 01.06.1988 and granted Special Grade in Hammerman post fixing the scale of pay of Rs.1320 – 2040, with effect from 28.03.1991. During the annual verification by Local Fund Audit, it was pointed out that Selection Grade scale of pay to the post of Hammerman with effect from 01.06.1988 is Rs.800 – 1150 as per G.O.Ms.No.666, Finance (PC) Department dated 27.06.1989 and consequently revised the scale of pay of Rs.825 – 1200 as per G.O.Ms.No.304, Finance (PC) Department dated 28.03.1990. Moreover, the Special Grade Hammerman scale of pay is Rs.950 – 1500. Accordingly the pay have been revised with effect from 01.06.1988 to 30.04.1998 amounting to Rs.40,657/- and excess paid amount of Rs.55/- to the total of Rs.40,712/-has been recovered from his DCRG amount as per audit final settlement certificate. (iv) In the counter of the 1st respondent, it is also stated that as per the annual verification of LF Audit and audit final settlement certificate, the pay in the post of Selection Grade Hammerman has been revised to Rs.825 - 1200 and excess paid wages have been recovered in DCRG amount and further during the petitioner's service, he had furnished a declaration which was pasted in the Service Register to the effect that excess amount if found at a later date consequent on fixation of pay and drawal of arrear thereon will be refunded. (v) Further, to his representation dated 27.10.2004, a reply has been given to him on 20.12.2004. As per the LF Audit Final Settlement Certificate, the recovery of excess amount paid to the petitioner for a sum of Rs.40,712/- is in order. For the above said reasons, he prayed for dismissal of the writ petition. 5. The learned counsel for the petitioner in his submissions has strenuously contended that the impugned orders are passed without notice and without affording an opportunity to the petitioner, when there was no misrepresentation by the petitioner for fixation of the scale of pay. It is his further submission that as per the Government order in G.O.Ms.No.582, Finance (PC) Department dated 01.08.1992, the post of Hammerman has been included and therefore, the fixation was rightly done as per the Government order and there was no fault on the part of the petitioner. Further, the pay scale of Hammerman has been revised in the Government order dated 01.08.1992 and the said revision was applicable to all the departments. The reduction as well as excess amount ordered to be recovered is in violation of principles of natural justice. Further, the pay scale of Hammerman has been revised in the Government order dated 01.08.1992 and the said revision was applicable to all the departments. The reduction as well as excess amount ordered to be recovered is in violation of principles of natural justice. Being the senior citizen, having put in long number of years of service, in the absence of any misrepresentation, the respondents have arbitrarily proceeded to recover the amount which caused serious hardship and difficulties to run the remaining life time of the petitioner. 6. To substantiate the above contentions, the learned counsel for the petitioner has relied on the following: (a) a decision of the Supreme Court reported in (2009) 3 SCC 475 in the case of Syed Abdul Qadir v. State of Bihar "27. Alternatively, it is submitted that in view of the fact that the decision of the learned Single Judge in CWJC No. 2405 of 1997 holding that the amendment of Clause 13(ii) of the Resolution dated 18-12-1989 by the Resolution dated 20-2-1993 in the case of Assistant Teachers of primary schools would apply prospectively i.e. w.e.f. from 20-2-1993, had attained finality, the letters patent appeal against which having been dismissed by the Division Bench of the High Court and the State of Bihar having not challenged the said decision before this Court, the question of making the Office Order effective from a date prior to 20-2-1993 does not arise. 28. It has also been submitted that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount that has been paid to the appellants cannot and should not be recovered; it having been paid without any misrepresentation or fraud on the part of the appellants herein". (b) another decision of Supreme Court reported in 1995 Supp (1) SCC 18 in the case of Sahib Ram v. State of Haryana "5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs". (c) in the case of Union of India v. M. Bhaskar reported in (1996) 4 SCC 416 , the Supreme Court has held: "18. Despite the aforesaid conclusion of ours, we are of the view that the recovery of the amount already paid because of the aforesaid judgments of the Tribunals would cause hardship to the respondents/appellants concerned and, therefore, direct the Union of India and its officers not to recover the amount already paid. This part of our order shall apply (1) to the respondents/appellants who are before this Court; and (2) to that pre-1987 apprentice in whose favour judgment had been delivered by any CAT and which had become final either because no appeal was carried to this Court or, if carried, the same was dismissed. This benefit would be available to no other". (d) yet another decision of the Supreme Court reported in (2007) 6 SCC 180 in the case of Babulal Jain v. State of M.P "11. It is not the case of the appellant that the post of Assistant Grade II provides for a channel of promotion to the post of Election Supervisor. The appellant, indisputably was an employee working in the Collectorate having been appointed by the State of Madhya Pradesh. A Collector of a district has many functions; one of them being to oversee holding of elections in his district as an Electoral Officer. The appellant, indisputably was an employee working in the Collectorate having been appointed by the State of Madhya Pradesh. A Collector of a district has many functions; one of them being to oversee holding of elections in his district as an Electoral Officer. He, therefore, although could have recommended for the posting of the appellant on the post of Election Supervisor, the question of his appointment or for that matter promotion thereto did not and could not arise. The appellant did not show that there exists any channel of promotion from the post of Assistant Grade II to the post of Election Supervisor". (e) in the case of Bhagwan Shukla v. Union of India, reported in (1994) 6 SCC 154 , the Supreme Court has held as follows "3. We have heard learned counsel for the parties. That the petitioner’s basic pay had been fixed since 1970 at Rs.190 p.m. is not disputed. There is also no dispute that the basic pay of the appellant was reduced to Rs.181 p.m. from Rs.190 p.m. in 1991retrospectively w.e.f. 18-12-1970. The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the (sic employee) concerned to notice and giving him a hearing in the matter. Since, that was not done, the order (memorandum) dated 25-7-1991, which was impugned before the Tribunal could not certainly be sustained and the Central Administrative Tribunal fell in error in dismissing the petition of the appellant. The order of the Tribunal deserves to be set aside. We, accordingly, accept this appeal and set aside the order of the Central Administrative Tribunal dated 17-9-1993 as well as the order (memorandum) impugned before the Tribunal dated 25-7-1991 reducing the basic pay of the appellant from Rs.190 to R.181 w.e.f. 18-12-1970". The order of the Tribunal deserves to be set aside. We, accordingly, accept this appeal and set aside the order of the Central Administrative Tribunal dated 17-9-1993 as well as the order (memorandum) impugned before the Tribunal dated 25-7-1991 reducing the basic pay of the appellant from Rs.190 to R.181 w.e.f. 18-12-1970". (f) a Division Bench decision of this court, dated 19.02.2009 made in W.A.No.453 of 2007 : "15. It is well settled that when the employee had not misrepresented or is in no way responsible for the excess payment which was discovered by way of audit objection or otherwise, there can be no recovery. In MANU/SC/0654/1994 : (1994) ILLJ815SC [Shyam Babu Verma vs. Union of India], the Supreme Court held that where excess amount had been paid due to no fault of the employees, there can be no recovery and that any excess amount drawn by the writ petitioner cannot be recovered from her..." (g) yet another decision of this Court reported in (2009) 6 MLJ 882 in the case of R.Rajasekar vs. The Secretary to Government, School Education Department "6. Learned counsel for the petitioner would contend that the order impugned in the writ petition is passed without even affording an opportunity of hearing to the petitioner and without even serving a notice on him. In support of his contention, learned counsel for the petitioner has relied on a decision of the Supreme Court reported in MANU/SC/7324/2007: (2007) 6 SCC 180 (Babulal Jain v. State of M.P. and Ors.) Relevant portion of the said decision is extracted hereunder: "15. We, however, are of the opinion that in a case of this nature, no recovery should be directed to be made. The appellant has discharged higher responsibilities. It is not a case where he obtained higher salary on committing any fraud or misrepresentation. The mistake, if any, took place on a misconception of law. He was at least entitled to some allowances. In refixing his pay, his claim to that effect has not been considered. He has since retired. A sum of Rs.22,000/- has been recovered from him. Such recovery has been effected without issuing any show cause notice. His case on merit in this behalf had not been considered by the Government and even by the Tribunal". 7... 8. In refixing his pay, his claim to that effect has not been considered. He has since retired. A sum of Rs.22,000/- has been recovered from him. Such recovery has been effected without issuing any show cause notice. His case on merit in this behalf had not been considered by the Government and even by the Tribunal". 7... 8. A perusal of the impugned order dated 28.12.2007 passed by the 1st respondent would reveal that it is passed based on the audit objection and the proceedings initiated to recover the excess amount paid to the petitioner is without notice to the petitioner and without even affording an opportunity of hearing to him. Had the respondents relied on the audit objection and passed the impugned order,then they would have given an opportunity of hearing to the petitioner by issuing proper notice to him, calling for explanation as to why his pay should not be reduced or excess amount be recovered. But, the respondents have not done so with regard to the petitioner". 7. Per contra, the learned counsel for the respondents would contend that the pay fixed for the post of Selection grade Hammerman is contrary to the Government order issued in G.O.Ms.No.582, Finance (PC) Department, dated 01.08.1992 and the pay scale fixed at Rs.950 – 1500 is against Rs.825 – 1200. It is his further contention that as there was a local fund audit and a Final Settlement Certificate has been issued to revise the pay scale of Hammerman at Rs.825 – 1200, the excess paid wages have been ordered to be recovered and hence the said amount has been deducted from the DCRG amount of the petitioner, which is in order and it cannot be faulted with since the Hammerman in General Work Shop does not cover the Government order. Further, he would submit that as the petitioner has given a declaration at the time of his service to the effect that the excess amount if found at a later date consequent on fixation of pay and drawal of arrears thereon will be refunded, deduction from his DCRG is sustained. Hence, he prayed for dismissal of the writ petition. 8. On the above background pleadings and the submissions made, I have heard the learned counsel on either side and perused the material documents and given due consideration to the decisions relied on by the learned counsel for the petitioner. 9. Hence, he prayed for dismissal of the writ petition. 8. On the above background pleadings and the submissions made, I have heard the learned counsel on either side and perused the material documents and given due consideration to the decisions relied on by the learned counsel for the petitioner. 9. Admittedly, the petitioner was initially employed as a Carpenter under the 1st respondent from 1963 to 1971 and thereafter he was appointed as a Hammerman in (C) Cattle Depot and in the year 1998, he was transferred to General Mechanical Engineering Department and he continued there till his date of retirement on 30.06.2000. It is seen that there was a Government order issued in G.O.Ms.No.52, Finance (PC) Department dated 01.08.1992 and based on the official recommendations the pay scale of the Hammerman was revised from Rs.800 -1150 to Rs.950 – 1500 and the benefit was also granted to him with effect from 01.04.1992. However, in May 1998, the pay scale of the petitioner was revised from Rs.950 – 1500 to Rs.800 – 1150 without notice and without enquiry. As the petitioner was aggrieved, immediately he has taken the matter to the competent authorities and he insisted upon the respondents to disclose the reasons for the reduction of pay scale. But, there was no reply. By that time, the petitioner has reached the age of superannuation. Immediately, after his date of retirement, within a month, on 30.7.2000, the impugned order has been passed by the 1st respondent by deducting a sum of Rs.40,712/- from the gratuity amount of the petitioner. There again, the petitioner consistently pleaded before the respondents personally to know the reason for deduction of the said amount and it was not given to him even though he ran from pillar to post in order to know the reasons. Finally, he made a representation on 07.12.2000 to the 2nd respondent to which the 2nd respondent has given a reply on 20.12.2004 stating that due to wrong fixation of pay, an amount of Rs.40,712/- has been ordered to be recovered as excess amount paid to him at the time of his retirement based on the certificate issued by the Local Fund Audit Department and therefore, it was decided to deduct the said amount. 10. 10. Assailing the above impugned orders, the petitioner has raised the grounds that the above orders are legally infirmed orders and are passed without notice and without affording an opportunity of hearing and further when there was no misrepresentation and fault on the part of the petitioner in fixation of the pay scales, recovering the excess amount paid to the petitioner by way of impugned orders cannot be sustained. Therefore, the impugned orders passed by the respondents are in violation of Article 21 of the Constitution of India and it would affect the livelihood for the remaining life time, if any order of recovery of the excess amount paid to him is made and the amount recovered from the DCRG is not refunded to him. Therefore, the orders suffer violation of principles of natural justice. 11. To examine the above principle, it is to be seen that it is not the case of the respondents that the petitioner had requested for any fixation of the pay scale and he has not represented or misrepresented for such fixation. It is on the own action of the respondents, fixation of the pay scale as per the Government order has been made. The said G.O. is applicable to all the departments including the respondent Corporation and accordingly they fixed the scale of pay and the benefit of the pay revision was earlier granted to the petitioner. When such is the case, while going for refixation of such fixation already done or reduction of the pay scales, it is mandatory on the part of the respondents to show cause as to why such reduction should be made as the pay was fixed wrongly and also in fairness before taking such a decision, the concerned person aggrieved should be given a reasonable opportunity of hearing. It is pertinent to point out that such an opportunity is given to make the person aggrieved to explain for what reasons the pay fixation was granted and he may be able to explain that the Hammerman was also included in the Government order. A perusal of the impugned order and the proceedings would reveal that the respondents have not followed such a procedure and therefore the impugned orders suffer from legal infirmities. As such the entire proceedings is vitiated in law because neither any notice nor any opportunity was given. A perusal of the impugned order and the proceedings would reveal that the respondents have not followed such a procedure and therefore the impugned orders suffer from legal infirmities. As such the entire proceedings is vitiated in law because neither any notice nor any opportunity was given. Therefore, it is in violation of principles of natural justice. 12. Further, it is settled legal principle that undoubtedly the excess payment that has been paid to the petitioner was not because of any misrepresentation or fraud committed on the part of the petitioner and he had also no knowledge about for what reasons the said deduction has been effected. It would not be out of place to mention that the department in its counter admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong fixation of pay, for which the petitioner cannot be held responsible as held by the Apex Court in Syed Abdul Qadir v. State of Bihar, reported in (2009) 3 SCC 475 cited supra. 13. Further, as per the ratio laid by the Supreme Court in the case of Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18, if any wrong fixation of amount made not on account of any misrepresentation made by the employee but the benefit of higher scale of pay is given to him by wrong construction made by the employer, the employee cannot be held to be at fault. Under such circumstances, the excess amount paid would not be recovered from the person concerned. 14. This Court time and again has held that if the impugned orders are passed relying on audit objections, then the authority would have given an opportunity of hearing to the concerned person by issuing proper notice to him, calling for explanation as to why his pay should not be reduced or excess amount recovered and in the absence of any notice being issued to the concerned person and he was not even afforded an opportunity of hearing, the impugned proceedings of recovery of the excess payment cannot be sustained. One such a judgment was rendered by this Court in the case of R.Rajasekar vs. The Secretary to Government, School Education Department reported in (2009) 6 MLJ 882 cited supra. 15. One such a judgment was rendered by this Court in the case of R.Rajasekar vs. The Secretary to Government, School Education Department reported in (2009) 6 MLJ 882 cited supra. 15. For the foregoing reasons and the discussions, since the impugned orders which are in violation of principles of natural justice and would suffer from legal infirmity of having been issued without notice and affording an opportunity of hearing, cannot be sustained and are set aside. 16. Accordingly, the respondents are directed to refund the excess amount recovered from the petitioner and also pay the consequential benefits to him within a period of six weeks from the date of receipt of a copy of this order. The writ petition is allowed with the above direction. No costs.