Madras High Court
K.Valayanandham vs The District Treasury Officer on 27 October, 2021
W.P.(MD)No.3504 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.10.2021
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.(MD)No.3504 of 2016
and
W.M.P.(MD)No.6748 of 2016
K.Valayanandham ... Petitioner
vs.
1.The District Treasury Officer,
Virudhunagar, Virudhunagar District.
2.The Regional Joint Director of
Collegiate Education,
Madurai, Madurai District. ...Respondents
PRAYER: Writ Petition filed under Article 266 of the Constitution of
India for issuance of Writ of Certiorarified Mandamus, to call for the
records on the files of the first respondent pertaining to its order bearing
in R.C.No.16091/Q1/2015 dated 07.01.2016 and to quash the same and
consequently to direct the respondent to stop the recovery proceedings
and not to insist the remittance of alleged excess payment made to the
petitioner in previous years.
For Petitioner :Mr.S.C.Herold Singh
For Respondents :Mr.M.Linga Durai
Government Advocate
*****
1/11
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.3504 of 2016
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorarified
Mandamus, to quash the impugned order passed by the first respondent,
dated 07.01.2016 made in R.C.No.16091/Q1/2015 and to direct the
respondents to stop the recovery proceedings and to refrain the
respondents from insisting the remittance of the alleged excess payment
made to the petitioner in previous years.
2.The impugned order is an order issued by the first respondent
directing the recovery of a sum of Rs.1,72,539/- towards excess payment
of pension to the petitioner.
3.Heard Mr.S.C.Herold Singh, learned Counsel appearing for the
petitioner and Mr.M.Linga Durai, learned Government Advocate
appearing for the respondents.
4.The petitioner was posted as Librarian with effect from
02.07.1952 and he was permitted to retire from service on attaining
superannuation as Librarian on 31.05.1985. It is not in dispute that the
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.3504 of 2016
pension of the petitioner was authorized, based on the qualifying service.
It is the case of the petitioner that as per the Government Order, the scale
of pay for the post of College Librarian and the scale of pay fixed for
Assistant Professor in the College are one and the same and therefore, the
pension that was paid to the petitioner was based on the subsequent
revisions of pay. Based on the Government order dated 15.12.2009, it is
submitted by the petitioner that the revision of pay was granted to the
pensioners, who retired as Readers, Lecturers and equal Cadres.
5.It is the case of the petitioner that the pension of the petitioner
was fixed as Rs.23,200/- per month considering his pay band of
Rs.37,400-67,000 and the academic grade pay of Rs.9,000/- at
Rs.23,200/-, which is applicable to the post of Lecturer (Selection
Grade). It is further stated that the petitioner's pension increased from
Rs.13,560/- to Rs.23,200/- on par with Lecturer (Selection Grade) who
had completed nineteen years from their initial appointment. Though the
petitioner has produced before this Court only the Government Order
vide G.O.Ms.No35, dated 19.01.1989, there is no reference to the
subsequent revision of pay. It is contended by the petitioner that the first
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.3504 of 2016
respondent passed a recovery order in arbitrary manner without giving
any opportunity to the petitioner. It is further contended that the pension
was disbursed to the petitioner as per the records available with the
respondents and that the petitioner has never made any misrepresentation
which has resulted in increase of pension amount. The petitioner also
raised some grounds as against the decision of reducing the pension.
6.A Counter affidavit has been filed by the first respondent
pointing out that as per the provisions laid down in G.O.Ms.No.702,
Finance (Pension) Department, dated 07.10.1988, the first respondent is
competent to recover the amount due, if it is found that there is over
payment of pension/family pension. It is also stated that the petitioner
was given a show cause notice narrating the details of recovery along
with a working sheet with a request to offer his explanation within fifteen
days from the date of receipt of notice.
7.It is further stated that sufficient time was given to the petitioner
before recovery. However, the typed set of papers filed by the first
respondent refers to a communication, dated 07.01.2016, which is not a
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.3504 of 2016
show cause notice, but a direction to the petitioner to pay a sum of
Rs.1,72,539/- towards excess payment. After the impugned order, dated
07.01.2016, a further communication was issued to the petitioner
on 08.01.2016 to the effect that the excess amount to the tune of
Rs.8,24,660/- was wrongly paid by way of pension and that the pension
amount has wrongly fixed at Rs.23,200/-. Though the notice dated
08.01.2016 may be called as show cause notice, the decision is taken to
recover a sum of Rs.8,24,660/- towards excess payment for the period
from 01.04.1999 to 30.11.2015. A subsequent order dated 29.01.2016
was passed by the first respondent confirming the order that was
proposed as per the previous communication, dated 08.01.2016.
Unfortunately, the petitioner has not challenged the subsequent orders for
recovery. Be that as it may, the impugned order challenged in the Writ
Petition is an order of recovery, dated 07.01.2016, without any show
cause notice or without affording an opportunity to the petitioner.
8.The learned counsel appearing for the petitioner relied upon a
Judgment of the case of State of Punjab Vs. Rafiq Masih reported in
(2015) 4 SCC 334, wherein the our Honourable Supreme Court had an
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.3504 of 2016
occasion to deal with similar orders of recovery and has held as follows:-
“18.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 that as it
may, based on the decisions referred to hereinabove, we
may, as a ready reference, summarise the following few
situations, wherein recoveries by the employers, would be
impermissible in law:
(i) Recovery from the employees belonging
to Class III and Class IV service (or Group C
and Group D service).
(ii)Recovery from the retired employees, or
the employees who are due to retire within one
year, of the order of recovery.
(iii) Recovery from the 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.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.3504 of 2016
(v) In any other case, where the court
arrives at the conclusion, that recovery if made
from the employee, would iniquitous or harsh or
arbitrary to such an extent, as would far
outweigh the equitable balance of the employer's
right to recover.”
9.However, the Honourable Supreme Court in the case of High
Court of Punjab and Haryana and others vs Jagdev Singh reported in
(2016) 14 SCC 267, after referring to the above judgment of
Hon'ble Supreme Court in Rafiq Masih case reported in (2015) 4 SCC
334 has held that the proposition held in Rafiq Masih case regarding
recovery from retired employees cannot be applied to a situation, where
the Officer, to whom the payment was made in the first instance, was
clearly put on notice that any payment found to have made in excess can
be recovered in future. Similarly, the Hon'ble Supreme Court in the case
of Chandi Prasad Uniyal and others vs State of Uttarakhand and
others reported in AIR 2012 SC 2951, 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
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.3504 of 2016
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.”
10.In the present case, the learned Government Advocate
appearing for the respondents has produced before this Court the
undertaking given by the petitioner himself to the effect that in case any
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.3504 of 2016
excess amount is paid towards pension, the petitioner agrees for
reduction of such excess amount from the amount payable to him in
future.
11.Having regard to the facts in the present case, this Court is of
the view that the impugned order of recovery without prior notice or
opportunity to the petitioner, is unsustainable. However, the subsequent
show cause notice and the order for recovery cannot be held illegal in the
absence of a challenge to the said proceedings. Though, this Court finds
that the impugned order in the Writ Petition is liable to be quashed, it is
unable to grant any further relief to the petitioner.
12.It is stated by the learned Counsel appearing for the petitioner
that in the subsequent order for recovery, the amount that was claimed by
the respondents in the order impugned in the Writ Petition is also
included. Hence, this Court is of the view that the petitioner's interest
will be protected, if he is permitted to file another Writ Petition
challenging the subsequent order, dated 29.01.2016.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.3504 of 2016
13.For the reasons stated above, the Writ Petition is allowed only
on the ground that the impugned order is in violation of principles of
natural justice. Hence, liberty is given to the petitioner to challenge the
subsequent order, dated 29.01.2016. No costs. Consequently, the
connected miscellaneous petition is closed.
Index :Yes / No 27.10.2021
Internet :Yes
To
1.The District Treasury Officer,
Virudhunagar, Virudhunagar District.
2.The Regional Joint Director of
Collegiate Education,
Madurai, Madurai District.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.3504 of 2016
S.S.SUNDAR, J.
tmg/cp
Order made in
W.P.(MD)No.3504 of 2016
27.10.2021
https://www.mhc.tn.gov.in/judis/
