Madras High Court
K.Sundari vs The Commissioner Of Treasuries And ... on 12 August, 2024
Author: Abdul Quddhose
Bench: Abdul Quddhose
W.P.(MD)No.5695 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.08.2024
CORAM
THE HONOURABLE MR JUSTICE ABDUL QUDDHOSE
W.P.(MD)No.5695 of 2017
and
W.M.P.(MD).No.4539 of 2017
K.Sundari ... Petitioner
Vs.
1.The Commissioner of Treasuries and Accounts,
Panagal Building,
Saidapet,
Chennai-600 015.
2.The Accountant General (A&E),
Tamil Nadu,
Chennai-600 015.
3.The Assistant Treasury Officer,
Paramakudi,
Ramanathapuram District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified mandamus, calling for the records relating to
the impugned order relation to civil pension-excess payment dated 09.01.2017
in Na.Ka.No.671/A3/2016, on the file of the third respondent and quash the
same and consequently direct the third respondent to repay the amount
recovered from the petitioner within the stipulated period.
1/10
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.5695 of 2017
For Petitioner : Mr.K.Rajeshwaran
For R-1 & R-3 : Mr.S.Kameswaran,
Government Advocate
For R-2 : Mr.P.Gunasekaran,
Standing Counsel
ORDER
Heard Mr.K.Rajeshwaran, learned counsel appearing for the petitioner,
Mr.S.Kameswaran, learned Government Advocate appearing for respondent
Nos.1 and 3 and Mr.P.Gunasekaran, learned Standing Counsel appearing for the
second respondent.
2. This Writ Petition has been filed challenging the impugned order dated
09.01.2017, passed by the third respondent, directing the petitioner to pay a sum
of Rs.60,913/- (Rupees Sixty Thousand Nine Hundred and Thirteen only) which
was paid in excess to the petitioner's husband viz., P.Kuthalam, who was an
employee in the Highways Department.
3. The petitioner after the death of her husband has been receiving family
pension. The petitioner's husband, P.Kuthalam, was working in the Highways
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Department and he retired from service. After his death, the petitioner has been
receiving family pension.
4. According to the petitioner, after her husband's demise, she was
receiving a family pension of a sum of Rs.8,458/- (Rupees Eight Thousand Four
Hundred and Fifty Eight only) and last drawn family pension by her was
Rs.9,198/- (Rupees Nine Thousand One Hundred and Ninety Eight only).
According to the petitioner, without any enquiry and without adhering to the
principles of natural justice, the third respondent has passed the impugned order
directing the petitioner to pay a sum of Rs.60,913/- (Rupees Sixty Thousand
Nine Hundred and Thirteen only) towards alleged excess payment made by the
respondents towards the family pension of the petitioner from September 2016
onwards.
4.1. According to the petitioner, the third respondent has already
recovered illegally a sum of Rs.25,000/- (Rupees Twenty Five Thousand only)
from the petitioner towards excess amount made by them without prior notice to
the petitioner. The petitioner claims that she is an aged person and she is
suffering from Asthma, Hyper Blood Pressure and she is an Osteoporosis
patient and is spending huge amount of money towards her medical treatment.
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5. Learned counsel drew the attention of this Court to the decision of the
Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq
Masih (White Washer) and Others reported in (2015) 4 SCC 334 and would
submit that the petitioner's husband being a Class-III employee, the respondents
are not permitted to recover the excess payment made by them as per the
aforesaid decision. He also drew the attention of the Division Bench Judgment
of this Court rendered in W.A.(MD).No.604 of 2024, dated 03.04.2024 in the
case of D.Kanagaraj Vs. The Principal Secretary, Department of Health and
Family Welfare, Fort St.George, Chennai-9 and others and would submit that
in the said decision of the Division Bench, followed the decision rendered by
the Hon'ble Supreme Court in White Washer's case referred to supra and held
that no recovery can be made by the respondents in respect to excess payment
and if any recovery was already made, the same has also been directed to be
refused back to the writ petitioner therein. Therefore, he would submit that the
petitioner is also entitled to a similar direction from this Court namely to direct
the respondents to return the money which was recovered by the respondents
from the petitioner on account of excess payment made by them.
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6. On the other hand, learned counsels appearing for the respective
respondents drew the attention of this Court to the Judgment of the Hon'ble
Supreme Court in the case of State of Punjab and Others Vs Rafiq Masih
(Whitewasher) reported in (2014) 8 SCC 883 and in particular, they were
referred to Paragraph No.7 of the said Judgment, wherein, the Hon'ble Supreme
Court had followed the decision of the Hon'ble Supreme Court rendered in
Chandi Prasad Uniyal and others Vs. State of Uttarakhand and others
reported in (2012) 8 SCC 417, wherein, it was held that even if by mistake of
the employer, the amount is paid to the employee and on a later date, if the
employer after proper determination of the same discovers that the excess
payment is made by mistake or negligence, the excess payment so made could
be recovered. Relying upon the aforesaid decision, learned counsels appearing
for the respective respondents, would submit that there is no error committed by
the respondents in passing the impugned order as only due to the fact that the
excess payments were made, the petitioner has been directed to refund the
excess payment amounting to Rs.60,913/- (Rupees Sixty Thousand Nine
Hundred and Thirteen only).
7. It is an admitted fact that the petitioner's husband was working as
Mechanic in the Highways Department and he is a Class-III employee. The said
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fact is also not disputed by learned counsels appearing for the respective
respondents. In the decision rendered by the Hon'ble Supreme Court in the case
of State of Punjab and others Vs. Rafiq Masih (White Washer) and Others
reported in (2015) 4 SCC 334 relied upon by learned counsel appearing for the
petitioner, it has been made clear that even if excess payments were made by
mistake committed by the respondents, recovery cannot be made from a Class-
III employee or Class-IV employee. In the decision relied upon by learned
counsels appearing for the respective respondents, which was rendered prior to
the Second Whitewasher's case relied upon by the learned counsel appearing
for the petitioner which is reported in (2014) 8 SCC 883, the said decision did
not deal with a issue as to whether recovery could be made from a Class-III or
Class-IV employee. When the subsequent decision of the Hon'ble Supreme
Court in the case of State of Punjab and others Vs. Rafiq Masih (White
Washer) and Others reported in (2015) 4 SCC 334 has made it clear that, the
recovery of excess payment cannot be made from Class III or Class IV
employee, then, necessarily, the said decision will have to enure for the benefit
of the petitioner.
8. Though in the decision relied upon learned counsels appearing for the
respective respondents, viz, in the case of State of Punjab and Others Vs Rafiq
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Masih (Whitewasher) reported in (2014) 8 SCC 883 that permits the recovery
of excess payment, the said decision cannot be applied to the facts of the present
case, as admittedly, the petitioner is a Class-III employee and it has been also
been made clear in the subsequent decision of the Hon'ble Supreme Court in the
case of State of Punjab and others Vs. Rafiq Masih (White Washer) and
Others reported in (2015) 4 SCC 334 that recovery cannot be made from Class-
III or Class-IV employees.
9. The Division Bench of this Court in W.A.(MD).No.604 of 2024,
dated 03.04.2024 relied upon by learned counsel appearing for the petitioner in
the case of D.Kanagaraj Vs. The Principal Secretary, Department of Health
and Family Welfare, Fort St.George, Chennai-9 and others also supports the
case of the petitioner as in that case also erroneously the excess payments were
made to a Class-III employee and the impugned order seeking payment of
excess payments were challenged and the Division Bench held that such
recovery cannot be made and if any recovery has already been made, the same
shall be returned back to the writ petitioner therein.
10. The facts of the present case is identical to the facts of the case in the
Division Bench decision of this Court in W.A.(MD).No.604 of 2024 dated
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03.04.2024 relied upon the learned counsel appearing for the petitioner.
Admittedly, in the instant case, the petitioner is a Class-III employee. Out of
the total sum of Rs.60,913/- (Rupees Sixty Thousand Nine Hundred and
Thirteen only) a sum of Rs.14,238/- (Rupees Fourteen Thousand Two Hundred
and Thirty Eight only) has already been recovered from the petitioner. The
recovery made by the respondents is contrary to the decision rendered by the
Honble Supreme Court in the case of State of Punjab and others Vs. Rafiq
Masih (White Washer) and Others reported in (2015) 4 SCC 334 and the
impugned order directing the petitioner to pay the entire amount of Rs.60,913/-
(Rupees Sixty Thousand Nine Hundred and Thirteen only) is also contrary to
the said decision and therefore, the impugned order has to be necessarily
quashed and the third respondent has to be directed to refund the excess
payment of a sum of Rs.14,238/- (Rupees Fourteen Thousand Two Hundred and
Thirty Eight only) recovered from the petitioner within a time frame to be fixed
by this Court.
11. Accordingly, the impugned order dated 09.01.2017 in Na.Ka.No.
671/A3/2016 passed by the third respondent is quashed and the third respondent
is directed to refund the sum of Rs.14,238/- (Rupees Fourteen Thousand Two
Hundred and Thirty Eight only) recovered from the petitioner towards the
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alleged excess payment made by them to the petitioner within a period of eight
weeks from the date of receipt of a copy of this order.
12. In the result, the Writ Petition stands allowed. No costs.
Consequently, the connected miscellaneous petition is closed.
12.08.2024
NCC:yes/no
Index:yes/no
Internet:yes/no
TSG
To
1.The Commissioner of Treasuries and Accounts,
Panagal Building,
Saidapet,
Chennai-600 015.
2.The Accountant General (A&E),
Tamil Nadu,
Chennai-600 015.
3.The Assistant Treasury Officer,
Paramakudi,
Ramanathapuram District.
https://www.mhc.tn.gov.in/judis
ABDUL QUDDHOSE, J.
TSG
12.08.2024
https://www.mhc.tn.gov.in/judis
