The writ petitioner has filed the present writ petition seeking to quash the proceedings of the second respondent in No.2098/2004/EA-1 dated 28.04.2004 insofar as he is concerned.
2. The petitioner joined as Work Inspector in the second respondent Board on 09.08.1973 and on completion of five years of service, he was provincialised and brought into regular establishment with effect from 01.01.1979. Thereafter, the petitioner was appointed as Junior Assistant with effect from 15.10.1980 since he qualified himself in the special test conducted by the Board. Thereafter, he was promoted as Assistant with effect from 18.06.1997 and his basic scale of pay was refixed consequent to VI Pay Commission at Rs.5,000/- with effect from 01.10.1997. As per the proceedings of the Board in 4629/F-Asst/EA-I/2003-1 dated 17.10.2003, his pay was refixed at Rs.6,200/- + Personal Pay of Rs.295/- with effect from 01.01.1999. As on 01.03.2004, the petitioner was drawing basic pay of Rs.7075/- p.m.
3. On 28.04.2004 the impugned proceeding has been passed by the second respondent which reads as follows:
"Proc.No.2098/2004/EA1/dated 28.04.2004 Sub: Estalishment-TWAD Board-Subordinate Service-Thiru R.kanthasamy, Assistant & Thiru G.Haridss,Assistant Pay fixation under Rule 4(3)-Sanctioned proceedings cancelled-excess payment recovery orders issued-Reg.
Ref: 1)T.O.proc.No.4629/EA-1/F Asst/2003 Dt.17.10.2003.
2)Secretary/TWAD/Chennai.Lr.No.08118/EA/A1/2004/HO Dt. 14.04.12004.
. . .
Based on the clarification issued by the Secretary/TWAD Baord/Chennai in the reference second cited the pay refixed to Thiru R.Kanthasamy, Assistant and Thiru G.Haridoss Assistant under rule 4(3) in the proceedings 1st cited is hereby cancelled.
Sd/....
Executive Engineer(TWAD) RWS Division,Tirunelveli."
Consequent to the impugned order, the petitioner's pay has been reduced to Rs.5,750/- as against Rs.7,075/- fixed on 01.03.2004.
4. The main grievance of the petitioner is that before passing the impugned order cancelling the proceedings of the Board dated 17.10.2003 and reducing his pay at Rs.5,750/- no notice was given to him The provisions of law or rules by which the pay is being reduced by cancelling the Board's proceedings dated 17.10.2003 has not been stated. Further, it is stated that no opportunity was given to the petitioner before passing the impugned order and the same has been passed arbitrarily to the detriment of the petitioner. Hence, petitioner pleads that the impugned proceeding should be set aside.
4. The respondents on notice, filed a counter statement running to five pages explaining the reasons for passing the impugned proceedings. Nowhere in the counter affidavit, the respondents have refuted the contention of the petitioner that he was not given an opportunity before passing the impugned proceedings. Further more, on going through the counter affidavit, it is seen that the department is trying to explain the four line impugned order by a five pages counter, giving details which are not found in the impugned order. The impugned proceedings cannot be amplified and clarified by way of a counter affidavit in view of the judgment of the Hon'ble Supreme Court in Mohinder Singh Gill and another v. - The Chief Election Commissioner, New Delhi and others AIR 1978 Supreme Court 851 and S.N.Mukherjee v. - Union of India (1990)4 SCC 594. In para 8 of the decision in AIR 1978 SC 851 reads as follows:-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J., in Gordhandas Bhani (AIR 1952 SC 16)(at p.18):
"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself".
Orders are not like old wine becoming better as they grow older."
Para 36 in (1990)4 SCC 594 reads thus:-
"36. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision on judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage."
5. In view of the above undisputed facts and circumstances of the case, the writ petition has to succeed only on the ground that there has been gross violation of principles of natural justice. The petitioner is prejudiced by the impugned order which has been passed without giving notice to the petitioner and without giving an opportunity to submit his versions with regard to the alteration of his pay which is to his detriment.
6. The Writ Petition is allowed and the impugned order is set aside. The respondents are at liberty to proceed further in accordance with law, however if they choose to do so and an opportunity should be given to the petitioner to state his defence. No costs.
PAL To
1. The Government of Water Supply and Drainage Board rep. by its Secretary TWAD Board, Chepauk, Chennai.5
2. The Executive Engineer, TWAD Board, RWS Division, Tiruchendur road, Samathanapuram, Palayamkottai, Tirunelveli 2