Madras High Court
S. Narayanasamy vs Yamuna Devi on 18 July, 2023
W.P. No.1162 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.07.2023
CORAM:
THE HON'BLE MR. JUSTICE S. VAIDYANATHAN
and
THE HON'BLE MR. JUSTICE K. RAJASEKAR
W.P. No.1162 of 2022 & W.M.P. No.1227 of 2022
S. Narayanasamy Petitioner
v
1 The Registrar
High Court of Madras
High Court
Chennai 600 104
2 The Director
Treasuries & Accounts Department II Floor
Combined Finance Department Office Complex
Nandanam
Chennai 600 035
3 The Regional Director of Treasuries & Accounts Department
II Floor
Combined Finance Department Office Complex
Nandanam
Chennai 600 035
4 The Pension Pay Officer
Pension Payment Office
Nandanam
Chennai 600 035
5 The Concurrent Audit Officer
Pension Payment Officer
Chennai 600 035
https://www.mhc.tn.gov.in/judis
1/8
W.P. No.1162 of 2022
6 The Accountant General (A & E)
No.361 Anna Salai
Chennai 18 Respondents
Writ Petition filed under Article 226 of the Constitution of India seeking a
writ of certiorarified mandamus calling for the records on the file of the fourth
respondent with regard to the impugned order passed in
Ref.Na.Ka.No.214039/2018/H2 dated 03.12.2018 and in
Ref.Na.Ka.No.16122/2021/H2 dated 29.09.2021 and quash the same and to
consequently direct the respondents to allow the petitioner to avail all pensions.
For petitioner Mr. V.S. Jagadeesan
For RR 2 to 5 Mrs. V. Yamuna Devi
Special Government Pleader
For RR 1 & 6 Mr. V. Vijay Shankar
ORDER
This writ petition has been filed challenging the communication dated
03.12.2018 of the fourth respondent, in and by which, the petitioner has been
required to return the excess pension of Rs.1,34,640/- received by him in a single
instalment, and also the letter dated 29.09.2021 of the fourth respondent, wherein,
it has been stated that the excess commutation amount of Rs.1,99,260/- which
ought to have been recovered @ Rs.1,320/- per month for 15 years from the date
of disbursement, was not recovered and hence, it has been recovered from his
pension and not from his salary.
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W.P. No.1162 of 2022
2 The petitioner joined the services of the Tamil Nadu Administrative
Tribunal as Assistant and he was subsequently promoted as Section Officer.
Pursuant to the abolition of the said Tribunal, the petitioner was appointed as
CO/SO/AE in this High Court and he attained the age of superannuation on
31.01.2007. He was granted all the terminal benefits, including commutation of
pension.
3 While so, according to the petitioner, all of a sudden, the first
impugned order dated 03.12.2018 and the second impugned order dated
29.09.2021, as stated in the opening paragraph, came to be passed and hence, this
writ petition.
4 According to the petitioner, the impugned orders dated 03.12.2018
and 29.09.2021 are bald inasmuch as they do not contain the details as to how the
excess payment was made. Further, according to him, he has not given any
incorrect information nor made any misrepresentation to the authorities and if
there is any mistake in determining the amount, the officers will have to be taken
to task and after a decade, recovery cannot be made and the act of the respondents
in recovering the entire amount is illegal.
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W.P. No.1162 of 2022
5 The fourth respondent has filed a counter affidavit dated 25.02.2022,
wherein, at paragraph no.6, it has been stated that by the first impugned order
dated 03.12.2018 and the second impugned order dated 29.09.2021, the petitioner
was informed that he had drawn pension in excess to which he is actually entitled
to as per the relevant provisions for the period from June 2010 to November 2017
and that the excess amount has been recovered from the monthly pension for the
period from December 2018 to July 2020.
6 In the said counter affidavit, details about the excess payment have
also been given by referring to the judgment of the Supreme Court in State of
Punjab v Rafiq Masih1 (White Washer case) wherein, it has been held that when
excess unauthorised payment is detected within a short period of time, it would be
open for the employer to recover the same; conversely, if the payment had been
made for a long duration of time, it would be iniquitous to make the recovery. On
the strength of the said judgment, the fourth respondent has contended that the
excess amount that was paid to the petitioner from June 2010 to November 2017
was recovered and there is no illegality in the said act of the respondents.
1 (2015) 4 SCC 334
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W.P. No.1162 of 2022
7 When the respondents are able to file a detailed counter affidavit
narrating the break up details of the excess amount paid, it is beyond the ken of
this Court as to what prevented them from stating the same in the impugned order.
Be it noted, a mere averment in the impugned orders that excess amount has been
paid and the same is sought to be recovered cannot be correct. It is indeed sorry
that the impugned order has not been properly worded.
8 In this context, it is apropos to refer to the sapient passage from the
judgment of the Supreme Court in Mohinder Singh Gill v Chief Election
Commissioner2 which reads thus:
“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.....” (emphasis supplied)
9 Further, it is pertinent to point out that the Government of Tamil
Nadu has also issued G.O.Ms.No.286, Finance (Pension) Department dated
28.08.2018 pursuant to the judgment of the Supreme Court in Rafiq Masih
(supra) and the opening paragraph of the said Government Order is worth
extracting:
2 (1978) 1 SCC 405
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W.P. No.1162 of 2022
“The Hon'ble Supreme Court in the case of State of Punjab & Others etc
vs. Rafiq Masih (White Washer) etc. in CA No.11527 of 2014 (Arising out of
SLP (C) No.11684 of 2012) wherein Hon'ble Court on 18.12.2014 decided a
bunch of cases in which monetary benefits were given to employees in excess of
their entitle due to unintentional mistakes committed by the concerned competent
authorities, in determining the emoluments payable to them, and the employees
were not guilty of furnishing any incorrect information/misrepresentation/fraud,
which had led the concerned competent authorities to commit the mistake of
making the higher payment to the employees. The employees were as innocent as
their employers in the wrongful determination of their inflated emoluments.....”
In the aforesaid Government Order, at paragraphs 9 and 10, there is a clear
direction as to how recovery should be done in the light of the judgment of the
Supreme Court in Rafiq Masih (supra) and that delay in processing of fixation of
pay/pension/family pension fixation with due approvals shall be avoided so as to
avoid hardship to the employees/pensioners/family pensioners concerned.
10 In the light of the judgment of the Supreme Court and the aforesaid
Government Order, we hope and trust that at least in future, while passing
recovery orders, necessary details are stated therein enabling the
employees/pensioners/family pensioners to defend themselves and know where
they stand actually and the reasons to be so assigned in recovery orders are not
supplemented in affidavits filed before the Court, which practice is deprecatory.
In the case on hand, since recovery has already been made, we are of the view that
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W.P. No.1162 of 2022
no further adjudication is required to be made in this case and accordingly, this
writ petition stands closed. Connected W.M.P. stands closed.
While parting, we hasten to add that though this is a fit case to impose costs
on the Government, we refrain from doing so and rather, reserve it for other
appropriate cases which amount shall be recovered from the erring officials.
(S.V.N., J.) (K.R.S., J.)
18.07.2023
cad
https://www.mhc.tn.gov.in/judis
W.P. No.1162 of 2022
S. VAIDYANATHAN, J.
and
K. RAJASEKAR, J.
cad
To
1 The Registrar
High Court of Madras
High Court, Chennai 600 104
2 The Director
Treasuries & Accounts Department II Floor
Combined Finance Department Office Complex
Nandanam, Chennai 600 035
3 The Regional Director of Treasuries & Accounts Department
II Floor W.P. No.1162 of 2022
Combined Finance Department Office Complex
Nandanam, Chennai 600 035
4 The Pension Pay Officer
Pension Payment Office
Nandanam, Chennai 600 035
5 The Concurrent Audit Officer
Pension Payment Officer, Chennai 600 035
6 The Accountant General (A & E)
No.361 Anna Salai
Chennai 18
18.07.2023
https://www.mhc.tn.gov.in/judis
