Madras High Court
Papathi vs The Assistant Educational ... on 7 September, 2023
W.P(MD)No. 875 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE BATTU DEVANAND
W.P.(MD)No.875 of 2017
and W.M.P. (MD) No.730 of 2017
Papathi ...Petitioner
Vs.
1. The Assistant Educational Officer,
Papanasam, Thanjavur District.
2. The Principal Accountant General (A & E),
Tamil Nadu, Chennai – 18.
3. The Sub – Treasury Officer,
Sub- Treasury office, Papanasam,
Thanjavur District. ....Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution
of India, seeking for the issuance of Writ of Certiorarified
Mandamus to calling for the records of the 3rd respondent relating to
order in fhKm 57/2016/m1 dated 15.09.2016 to quash the same
and to issue consequential directions to the respondents to continue
to disburse to the petitioner monthly pension which he was drawing
up to September 2016 without reduction of recovery.
1
https://www.mhc.tn.gov.in/judis
W.P(MD)No. 875 of 2017
For Petitioner : Mr.M. Saravanakumar
For R1 & R3 : Mr.A.Kannan
Additional Government Advocate
ORDER
Challenging the order of recovery passed by the third
respondent on 15.09.2016, this Writ Petition is filed.
2. The facts of the case are that the husband of the
petitioner, who worked as the Secondary Grade Teacher, died on
02.02.1990 while in service. Thereafter, the respondent has
sanctioned family pension vide PPO No. Nil 352029. All of a
sudden, the third respondent has reduced the monthly family pension
and passed the order for recovering of the excess amount from the
family pension vide order dated 15.09.2016. As per the order
impugned in this Writ Petition, a sum of Rs.1,05,072/- is sought to
be recovered from the petitioner on the ground of excess payment is
made to the petitioner while granting family pension paid from
01.01.2007 to 31.08.2016 due to incorrect determination of pension.
https://www.mhc.tn.gov.in/judis
W.P(MD)No. 875 of 2017
3. A counter affidavit has been filed by the respondents.
4. It is contended by the respondents that during the special
inspection by the cell of the Office of the Commissioner of
Treasuries and Accounts, Chennai, it was found that pension was
paid to the petitioner excessively from 01.01.2007 and in this regard
information was sent to the petitioner on 22.07.2016 towards excess
payment and its recovery and effect given to reducing of pension.
5. It is further contended that as the family pension is fixed
excessively, the order passed by the third respondent dated
15.09.2016 for recovery of the excess payment is correct and sought
to dismiss this Writ Petition.
6. Heard the learned counsel for the petitioner and the
learned Additional Government Pleader appearing for the
respondents 1 and 3 and perused the record.
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W.P(MD)No. 875 of 2017
7. As per the contention of the respondents 1 and 3, the
excess amount has been paid to the petitioner towards family
pension from 01.01.2007 to 31.08.2016. Admittedly, those excess
payments are made due to incorrect determination of the pension
and therefore, the respondents cannot found fault with the petitioner.
It is also to be noted that before passing the impugned order dated
15.09.2016, no notice is issued to the petitioner or no opportunity is
provided to the petitioner calling explanation of the petitioner,
which is in violation of principles of natural justice. Besides this,
this Court has to consider the legal principle in this regard as stated
by the Hon'ble Supreme Court of India in the case of State of
Punjab Vs. Rafiq Masih reported in (2015) 4 SCC 334, which is
extracted herein under:
“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,
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W.P(MD)No. 875 of 2017
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 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 in 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 a extent, as would far outweigh
the equitable balance of the employer's right to recover”
8. As the impugned order was issued in violation of the
principles of natural justice and by following the order of the
Hon'ble Apex Court as extracted supra, this Court is of the
considered opinion that the order impugned in this Writ Petition is
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W.P(MD)No. 875 of 2017
unsustainable under law and accordingly, liable to be set aside.
9. Accordingly, applying the ratio laid down in the
judgment of the Hon'ble Apex Court stated supra, this Writ Petition
is allowed and the order impugned in this Writ Petition is set aside.
4. No costs.
5.Consequently, connected miscellaneous petition is
closed.
07.09.2023
Index : Yes / No
NCC : Yes / No
CM
To,
1. The Assistant Educational Officer,
Papanasam, Thanjavur District.
2. The Principal Accountant General (A & E),
Tamil Nadu, Chennai – 18.
3. The Sub – Treasury Officer,
Sub- Treasury office, Papanasam,
Thanjavur District.
https://www.mhc.tn.gov.in/judis
W.P(MD)No. 875 of 2017
BATTU DEVANAND, J.
CM
W.P.(MD)No.875 of 2017
and W.M.P. (MD) No.730 of 2017
07.09.2023
https://www.mhc.tn.gov.in/judis
