Madras High Court

D.Barbaramary Callista vs The Government Of Tamil Nadu on 1 September, 2023

                                                                                   W.P.(MD) No.24951 of 2016



                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                        ORDERS RESERVED ON : 13.09.2023

                                       ORDERS PRONOUNCED ON : 03.10.2023

                                                          CORAM

                                    THE HON'BLE MR.JUSTICE BATTU DEVANAND

                                              W.P.(MD) No.24951 of 2016
                                                        and
                                             W.M.P.(MD) No.18046 of 2016

                     R.John Louis (Died)

                     1.D.Barbaramary Callista                                           ... Petitioner

                     [P1-Substituted vide Court order dated 01.09.2023 in W.M.P.
                     (MD) No.17480 of 2023 in W.P.(MD) No.24951 of 2016]

                                                             Vs.

                     1.The Government of Tamil Nadu,
                       Rep., by the Principal Secretary,
                       Higher Education Department,
                       Fort St. George, Chennai-9.

                     2.The Director of Collegiate Education,
                       College Road,
                       Chennai-6.

                     3.The Treasury Officer,
                       District Treasury,
                       Trichy.

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                                                                             W.P.(MD) No.24951 of 2016




                     4.The Principal,
                       St. Xavier's College,
                       Palayamkottai,
                       Tirunelveli.                                               ... Respondents

                     Prayer: Petition filed under Article 226 of the Constitution of India praying
                     for issue of Writ of Certiorarified Mandamus, calling for the records
                     pertaining to the impugned proceedings in Na.Ka.No.26404/2016/S1, dated
                     22.11.2006 issued by the 3rd respondent, quash the same and direct the 3rd
                     respondent to continue to pay the revised pension.

                                    For Petitioner   :        Mr.R.Subramanian

                                    For RR1 to 3     :        Mr.A.Kannan
                                                              Additional Government Pleader

                                    For R4           :        Mr.T.Cibi Chakraborthy


                                                         ORDER

Heard Mr.R.Subramanian, learned counsel for the petitioner,

Mr.A.Kannan, learned Additional Government Pleader appearing for the

Respondents No.1 to 3 and Mr.T.Cibi Chakraborthy, learned counsel for the

4th respondent.

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2. This writ petition was originally filed by one R.John Louis.

During the pendency of this writ proceedings, he died and his wife filed

substitute petition bearing W.M.P.(MD) No.17480 of 2023 and the same was

allowed by order of this Court dated 01.09.2023.

3. The case of the petitioner is that the original writ petitioner, i.e.,

the husband of the petitioner was appointed as Lecturer in Maths on

23.06.1955 in the 4th respondent-College. He was promoted as Professor on

01.07.1969. On 31.05.1989, he was relieved from services on attaining the

age of superannuation from the 4th respondent-College. His pension amount

was fixed at Rs.1,233/- on 11.07.1988. Thereafter, the pension was revised

periodically and his revised pension was fixed at the pay scale of Rs.37,400

- 67,000/- with grade pay of Rs.9,000/- and the pension amount was

Rs.23,2000/-. He has been receiving the revised pension all these years.

4. Suddenly, the 3rd respondent issued proceedings in Na.Ka.No.

26404/2016/S1, dated 22.11.2016 stating that there is an excess payment of

Rs.15,09,327/- and the same is being recovered by instalment amount of

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Rs.45,500/- per month commencing from November, 2016 from the pension

amount. Aggrieved by the action of the 3rd respondent in issuing such order,

the husband of the petitioner has filed this writ petition.

5. Though this writ petition was admitted and Rule NISI was

ordered on 23.12.2016, no counter affidavit has been filed till date on behalf

of the respondents.

6. Learned counsel for the petitioner submits that the impugned

proceedings are ex facie arbitrary, illegal and unsustainable. Learned

counsel would submit that the respondents ought to have seen that on

31.05.1989, the petitioner's husband was relieved from service on attaining

the age of superannuation and at that time, there was no designation as

Selection Grade Lecturer, which come into force only on 19.09.1996 after

University Grants Commission revised scales. As per G.O.Ms.No.106,

Higher Education (H1) Department, dated 14.05.2015, the pensioners who

have completed total service of 19 years are entitled for revised pension.

The petitioner's husband has completed more than 19 years of service and as

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such, he is entitled to the revised pension. As such, the contention of the 2 nd

respondent that the petitioner's husband was paid excess amount is not

correct. Learned counsel further contends that there is no misrepresentation

on the part of the petitioner's husband regarding revision of pension and as

such, the 2nd respondent is not entitled to effect recovery. Learned counsel

also submits that the order impugned in this writ petition is passed by the 3rd

respondent without affording any opportunity to the petitioner's husband by

issuing any show cause notice and as such, it is unsustainable under law.

7. Learned counsel for the petitioner has placed reliance on the

judgment of the Hon'ble Apex Court in State of Punjab and others v. Rafiq

Masih (White Washer) and others reported in (2015) 4 SCC 334, order

dated 02.05.2022 of the Hon'ble Apex Court in C.A.No.7115 of 2010

[Thomas Daniel v. State of Kerala & Ors], order dated 26.07.2023 in W.P.

(MD) No.17154 of 2016 and order dated 08.08.2023 in W.P.(MD) No.

22395 of 2016 of this Court.

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8. Learned Government Advocate appearing for the Respondents

No.1 to 3 contends that as per G.O.Ms.No.106, Higher Education (H1)

Department, dated 14.05.2015, it is found that in the auditing with effect

from 01.01.2007, an excess amount of Rs.15,09,327/- has been paid to the

petitioner's husband up to 31.03.2015 and accordingly, he was informed that

a sum of Rs.45,500/- will be recovered from his monthly pension from

November, 2016 onwards and as such, there is no irregularity or illegality in

passing the impugned order and prayed to dismiss the writ petition.

9. This Court gave anxious consideration to the submissions made

by the respective counsels and carefully perused the material available on

record including the authorities placed by the learned counsel for the

petitioner.

10. Admittedly, there is no dispute with respect to the appointment

of the petitioner's husband as Lecturer in Maths to till retirement from

service on 31.05.1989. As per the revised pension scale fixed by the

respondents from time to time, the petitioner's husband has been receiving

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the revised pension from the date of his retirement to till the date of the

impugned order.

11. It is the contention of the 2nd respondent that an excess

payment was made to the petitioner's husband from 01.01.2007 to

31.03.2015. But on careful perusal of the order impugned in this writ

petition, wherein the 3rd respondent has contemplated to effect recovery of a

sum of Rs.45,500/- per month from the monthly pension of the petitioner

from November, 2016 onwards, it is clearly established that no show cause

notice was issued to the petitioner's husband calling for his explanation or

no opportunity was provided to him to putforth his case before the

respondents to demonstrate whether the allegation of the respondents is

correct or not? It is also an admitted fact that in fixing the revised pension

to him, the petitioner's husband has no role to that effect and there is no

misrepresentation on his part with regard to the revision of pension. The

respondents themselves have fixed the revised pension and paid the same to

the petitioner's husband for all these days. As such, there is no justification

in issuing the impugned order by the 3rd respondent to recover an amount of

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Rs.45,500/- from the monthly pension of the petitioner. In fact, this writ

petition was filed in the year 2016 and at that time, the petitioner was aged

87 years. At that age, the 3rd respondent issued the impugned order for

recovery and the same was challenged before this Court and at the

admission stage, this Court ordered interim stay of the impugned order and

during the pendency of this writ proceedings, the petitioner died on

16.05.2021 at the age of 92 years and the wife of the petitioner at the age of

81 years came on record.

12. It is settled law that without issuing any notice to the

aggrieved party, passing an order is in violation of the principles of natural

justice.

13. Admittedly, in the present case, before passing the impugned

order, the 2nd respondent did not choose to issue show cause notice to the

petitioner's husband calling for his explanation. As such, in our considered

view, the order impugned in this writ petition is passed in violation of the

principles of natural justice.

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14. In fact, on several occasions, identical issue came up for

consideration before this Court. By following the proposition of law laid

down by the Hon'ble Apex Court in Rafiq Masih (White Washer) (supra),

this Court set aside the proceedings of recovery in W.P.No.6945 of 2022,

dated 26.06.2023 and in W.P.(MD) No.16106 of 2016, dated 20.07.2023.

The relevant portion of the judgment of the Hon'ble Apex Court in Rafiq

Masih (White Washer) (supra), is extracted hereinunder:

“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 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).

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(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 employers right to recover.”

15. One of the guidelines as relevant to the present case is that no

recovery to be initiated from retired employees or employees, who are due

to retire within one year of the order of recovery. In the present case, the

original petitioner retired on 31.05.1989. The respondents passed order for

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recovery of the excess payment in the year 2016. Thus, the impugned order

is unsustainable.

16. The Hon'ble Apex Court in Thomas Daniel (supra), while

considering identical issue, held as extracted hereinunder:

“(14) Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General.

(15) Having regard to the above, we are of the view that an attempt to recover the said increments after passage of ten years of his retirement is unjustified.”

17. This Court in W.P.(MD) No.17154 of 2016 and W.P.(MD) No.

22395 of 2016, while dealing the identical issues, has set aside the orders

for recovery impugned therein.

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18. On consideration of the facts and circumstances of the present

case and in the light of the authorities stated supra, this Court has no

hesitation to hold that the action of the 3rd respondent in issuing the

impugned order for recovery from the pension of the petitioner is illegal,

arbitrary, unjust and in violation of the principles of natural justice and

accordingly, the impugned order is hereby set aside.

19. For the above reasons, this Writ Petition is allowed.