Madras High Court
R.Arockiam vs The Director Of School Education on 8 October, 2021
W.P.(MD)No.18291 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.10.2021
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.(MD)No.18291 of 2017
and
W.M.P.(MD)No.5042 of 2018
R.Arockiam ... Petitioner
vs.
1.The Director of School Education
College Road,
Chennai-600 006.
2.The District Education Officer,
Gobichettipalayam,
Erode District.
3.The Account General,
361, Anna Salai, Tamil Nadu
Teynampet,
Chennai-600 018.
4.The District Treasury Officer,
Dindigul District, Dindigul.
5.The Assistant Treasury Officer,
Sub Treasury,
Vedasandur, Dindigul District. .... Respondents
1/10
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.18291 of 2017
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorarified Mandamus, to call for the
records pertaining to the impugned order in Oo.Mu./2017/Aa, dated
20.06.2017, on the file of the fifth respondent and to quash the same and
to direct the fifth respondent to refund the recovered amount from
01.06.2017 onwards as per the impugned order.
For Petitioner :Mr.N.Tamilmani
For R-1, 2, 4 and 5:Mr.M.Linga Durai
Government Advocate
For R-3 :Mr.P.Gunasekran
*****
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorarified
Mandamus, to quash the impugned order, dated 20.06.2017, passed by
the fifth respondent and to direct the fifth respondent to refund the
amount recovered from the petitioner from 01.06.2017.
2.Heard Mr.N.Tamilmani, learned Counsel appearing for the
petitioner, Mr.M.Linga Durai, learned Government Advocate appearing
for respondents 1, 2, 4 and 5 and Mr.P.Gunasekran, learned Standing
Counsel appearing for the third respondent.
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W.P.(MD)No.18291 of 2017
3.Brief facts, that are necessary for the purpose of disposal of this
Writ Petition, are as follows:
3.1.The petitioner was appointed as Secondary Grade Teacher in
the year 1964 in Sri Murugan Middle School, Palayam, Vedasandur
Taluk, Dindigul District, which is an aided School. Subsequently, during
the year 1966, the petitioner was transferred to another School, as
Secondary Grade Teacher. The petitioner was promoted as B.T.Assistant
(History) in St.Mary's High School, Kolapallur, Erode District, in the
year 1982. The petitioner was granted Selection Grade B.T.Assistant in
the year 1992 and retired from service on attaining the age of
superannuation on 30.04.1998. After retirement, the petitioner submitted
an application to revise his pension in terms of G.O.Ms.No.235, Finance
(Pc) Department, dated 01.06.2009. Based on the representation of the
petitioner, it appears that the second respondent, who is the pension
sanctioning Authority, revised the petitioner's pay in the pay band of
Rs.15,600-39,100+5400 (Grade Pay) and the pension for the petitioner
was fixed at Rs.10,500/- with effect from 01.01.2006. On the date of
filing the present Writ Petition, the petitioner admitted that he is getting a
monthly pension of Rs.24,650/-.
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W.P.(MD)No.18291 of 2017
3.2.By the impugned order passed by the fifth respondent, the
petitioner's pay was revised and pension was recalculated to fix at Rs.
9,300-34800+4800 (Grade Pay). Stating that the excess amount has been
paid to the petitioner towards pension from 01.01.2011 to 31.05.2017,
the impugned order was passed to recover the amount allegedly paid in
excess to the petitioner. Since the pension payable to the petitioner as on
01.01.2011 was only a sum of Rs.9,153/-, the fifth respondent has
informed the petitioner that the excess amount is to be recovered from
the month of January, 2017 at the rate of Rs.12,448/- per month for
sixteen months. After the impugned order, the petitioner submitted his
written representation to the fifth respondent stating that the Government
Letter cited in the impugned order is not applicable to the petitioner.
However, without considering the representation of the petitioner, the
respondents started deducting a sum of Rs.12,448/- from the month of
June 2017. Hence, challenging the impugned order, the present Writ
Petition is filed.
4.It is the case of the petitioner that the impugned order passed by
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W.P.(MD)No.18291 of 2017
the fifth respondent is erroneous and in violation of principles of natural
justice. It is further contended that the fifth respondent has no power to
revise the pension, which was already sanctioned by the second
respondent. Pointing out that the revised order passed by the second
respondent, dated 08.11.2014, is still in force, it is contended that the
fifth respondent has no power or jurisdiction to refix or revise the pay
scale and modify the original assessment. Stating that no opportunity of
personal hearing was given to the petitioner, the impugned order is
characterized as illegal.
5.The learned Counsel appearing for the petitioner submitted that
the order of recovery was issued by the fifth respondent, who has no
authority. From the impugned order, it is seen that the order has been
signed by the fifth respondent. The communication is an information to
the petitioner that a sum of Rs.2,02,753/- is to be recovered from the
pension of the petitioner. The recovery order may ultimately be justified
for valid reasons. But, there must be a fair enquiry or hearing before
passing any order affecting the petitioner's right.
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W.P.(MD)No.18291 of 2017
6.The learned Counsel appearing for the petitioner relied upon a
judgment of the Honourable Supreme Court in Civil Appeal No.11527 of
2014 and batch, in the leading case of State of Punjab and Orissa vs
Rafiq Masih, wherein it is held as follows:
“12. It is not possible to postulate all situations of
hardship, which would govern employees on the issue of
recovery, where payments have mistakenly been made by the
employer, in excess of their entitlement. Be 19 Page 20 that as it
may, based on the decisions referred to herein above, we may, as
a ready reference, summarise the following few situations,
wherein recoveries by the employers, would be impermissible in
law:
(i) Recovery from employees belonging to Class-III and
Class-IV service (or Group ‘C’ and Group ‘D’ service).
(ii) Recovery from retired employees, or employees who
are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment
has been made for a period in excess of five years, before the
order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully
been required to discharge duties of a higher post, and has been
paid accordingly, even though he should have rightfully been
required to work against an inferior post.
(v) In any other case, where the Court arrives at the
conclusion, that recovery if made from the employee, would be
iniquitous or harsh or arbitrary to such an extent, as would far
outweigh the equitable balance of the employer’s right to recover.
13. We are informed by the learned counsel representing
the appellant State of Punjab, that all the cases in this bunch of
appeals, would undisputedly fall within the first four categories
delineated hereinabove. In the appeals referred to above,
therefore, the impugned orders passed by 20 Page 21 the High
Court of Punjab and Haryana (quashing the order of recovery),
shall be deemed to have been upheld, for the reasons recorded
above.
14. The appeals are disposed of in the above terms.”
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W.P.(MD)No.18291 of 2017
7.However, the learned Counsel for the respondent relied upon a
judgment of the Honourable Supreme Court in the case of Chandi
Prasad Uniyal and others vs State of Uttarakhand and others reported
in AIR 2012 SC 2951, the Honourable Supreme Court has observed as
follows:
“16.We are concerned with the excess payment of public
money which is often described as “tax payers money”which
belongs neither to the officers who have effected over-payment
nor that of the recipients. We fail to see why the concept of fraud
or misrepresentation is being brought in such situations.
Question to be asked is whether excess money has been paid or
not may be due to a bona fide mistake. Possibly, effecting excess
payment of public money by Government officers, may be due to
various reasons like negligence, carelessness, collusion,
favouritism, etc. because money in such situation does not belong
to the payer or the payee. Situations may also arise where both
the payer and the payee are at fault, then the mistake is mutual.
Payments are being effected in many situations without any
authority of law and payments have been received by the
recipients also without any authority of law. Any amount
paid/received without any authority of law can always be
recovered barring few exceptions of extreme hardships but not as
a matter of right, in such situations law implies an obligation on
the payee to repay the money, otherwise it would amount to
unjust enrichment.
17.We are, therefore, of the considered views that except
few instances pointed out in Syed Abdul Qadir case (2009 AIR
SCW 1871) (supra) and in Col.B.J.Akkara(Retd.) case (2016 AIR
SCW 5252) (supra), the excess payment made due to
wrong/irregular pay fixation can always be recovered.”
8.This Court considered the grounds raised in the Writ Petition.
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W.P.(MD)No.18291 of 2017
This Court had an occasion to follow the judgments of the Honourable
Supreme Court to reiterate that no recovery order can be issued without
giving an opportunity to the delinquent. Having regard to the admitted
facts, this Court is of the view that the recovery order without issuing
notice to the petitioner is not permissible and therefore, on the short
ground of violation of principles of natural justice, the impugned order is
liable to be quashed.
10.Accordingly, the Writ Petition is allowed and the impugned
order, dated 20.06.2017, is quashed. However, the respondents shall
proceed afresh to decide whether any excess payment is made to the
petitioner and recover, after giving sufficient opportunity to the petitioner
and pass appropriate orders on merits and in accordance with law, within
a period of eight weeks from the date of receipt of a copy of this order.
No costs. Consequently, connected miscellaneous petition is closed.
Index :Yes / No 08.10.2021
Internet :Yes
tmg/cmr
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.18291 of 2017
To
1.The Director of School Education
College Road,
Chennai-600 006.
2.The District Education Officer,
Gobichettipalayam,
Erode District.
3.The District Treasury Officer,
Dindigul District, Dindigul.
4.The Assistant Treasury Officer,
Sub Treasury,
Vedasandur, Dindigul District.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.18291 of 2017
S.S.SUNDAR, J.
tmg/cmr
Order made in
W.P.(MD)No.18291 of 2017
08.10.2021
https://www.mhc.tn.gov.in/judis/
