Madras High Court

V.Shanmugam (Deceased) vs The Sub Treasury Officer on 10 August, 2023

   2023:MHC:3696


                                                                         W.P.No.2558 of 2017

                           IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                            Dated: 10.08.2023

                                                  Coram:

                          THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN

                                          W.P.No.2558 of 2017
                                        and WMP No.2522 of 2017

            V.Shanmugam (Deceased)

            2. Jayalakshmi
            (P2 substituted as LR of deceased
            sole petitioner vide order dated
            11.04.2022 made in WMP No.1211 of 2018)
                                                                     ... Petitioner

                                              Vs.

            The Sub Treasury Officer
            Gingee, Villupuram District.
                                                                     ....Respondent

            Prayer:        PETITION filed under Article 226 of the Constitution of India
            praying for the issuance of Writ of Certiorarified Mandamus calling for the
            records relating to the order passed by the respondent 25.07.2016 in
            Na.Ka.No.81/2016 dated 25.07.2016 and quash the same and thereby direct
            the respondent to refund the attached excess payment of pension in
            P.P.O.No.C 172664/EFG with 18% interest to the petitioner.


                      For Petitioner     : Mr. A.R.Nixon
                      For Respondent     : Mr.S.Ravikumar
                                          Special Govt. Pleader
https://www.mhc.tn.gov.in/judis

            1
                                                                               W.P.No.2558 of 2017

                                                    ORDER

The Writ Petition has been filed in the nature of certiorarified

mandamus seeking interference with order dated 25.07.2016 passed by the

respondent Sub-Treasury Officer, Gingee, Villupuram District in

Na.Ka.No.81/2016 and direct the respondent to refund the attached excess

payment of pension in P.P.O.No.C 172664/EFG with 18% interest back to the

petitioner.

2. Before proceeding further, let me make it clear that even if refund is

permitted, the petitioner will not be paid any interest on the same.

3. The petitioner had been appointed in the Education Department on

05.03.1982 as Headmaster in Government Higher Secondary School, Mel

Olakkur, Gingee, Villupuram District. He then retired after completing nearly

about 23 years of service on 30.11.2004. He was leading a peaceful

retirement life and was drawing pension. There were no issues with respect

to the amount of pension, which was paid to him, namely, Rs.16,661/-.

However, consequent to order dated 25.07.2016, there was a reduction in the

pension from Rs.16,661/- to Rs.5,206/-. There was also an order of recovery

of a total sum of Rs.1,97,190/-. Such order is now being put to test in the

present Writ Petition.

4. In the counter affidavit, the reduction in the pension and the recovery https://www.mhc.tn.gov.in/judis

W.P.No.2558 of 2017

had been justified by stating that the petitioner was paid Rs.7878/- per month

as pension from 01.01.2011 by calculating his scale of pay at Rs.15600-

37400 + 5400 grade pay. It is however contended that while examining the

stipulations given in G.O.Ms.No.235, the pay should be at 9300-34800+4800

grade pay, which according to the respondent is the next highest promotional

post of School Assistant.

5. It had been stated that the petitioner was receiving pension without

any restriction at Rs.7875/- instead of Rs.6295/-. It is therefore contended

that there was an excess payment between 01.01.2011 and 31.05.2016,

amounting to a sum of Rs.1,93,635/- and hence recovery of the said amount

has been directed. It had been stated that since the recovery was on the basis

of audit objection, the petitioner cannot question the same and the respondent

is bound to proceed in furtherance with the audit objection.

6. Learned counsel for the petitioner relied upon the delay with which

the said order was passed in the year 2016 when the petitioner had retired on

attaining the age of superannuation in the year 2004. It is also contended by

the learned counsel for the petitioner that the excess pension, which fact is

denied by the petitioner, even if it is admitted, would not result in any mistake

committed by the petitioner but owing to the mistake committed on the part of

the respondent.

https://www.mhc.tn.gov.in/judis

W.P.No.2558 of 2017

7. It is therefore contended that the said recovery can be termed as

'iniquitous' , as stated by the Hon'ble Supreme Court in the case of State of

Punjab V. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334.

8. Learned Special Government Pleader also had the benefit of the

records which had been produced and it is contended that an application had

been given to the Treasury Officer at Gingee by the pension sanctioning

authority, Headmaster, Government Higher Secondary School, Mel Olakkur,

Gingee, wherein, the said sanctioning authority had stated that revised scale

of pay of is Rs.15600 + 5400 grade pay and therefore pension should be

revised as Rs.7875/- with effect from 01.01.2011 as payable to the petitioner

herein.

9. However, there is no reference in any of the records that this

particular proposal was on the basis of the representation given by the

petitioner herein.

10. In the case of Rafiq Masih (supra), the Hon'ble Supreme Court

while dealing with the issue of recovery of excess amount paid to the

employee, 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 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:

https://www.mhc.tn.gov.in/judis

W.P.No.2558 of 2017

(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.

11. The distinct factor in the aforesaid judgment of the Hon'ble

Supreme Court is that excess pension should not be owing to any

representation given by a Government servant and if it is so, then recovery is

permitted. It had also been contended that if a particular amount is said to be

recovered, it cannot be 'iniquitous' and would cause burden on the

Government servant.

12. In the instant case, one further fact is that the petitioner also died

during the pendency of the Writ Petition and consequent upon the order in

WMP No.1211 of 2018 dated 11.04.2022, the widow has been impleaded as

petitioner to prosecute the Writ Petition. It would only mean that the

petitioner who had now stepped into his shoes to prosecute the Writ Petition

would get only 50% of the family pension.