Madras High Court
Kathamuthu vs The Accountant General (A & E) on 16 August, 2024
Author: Abdul Quddhose
Bench: Abdul Quddhose
W.P.(MD)No.11558 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.08.2024
CORAM
THE HON'BLE MR.JUSTICE ABDUL QUDDHOSE
W.P.(MD)No.11558 of 2017
and
W.M.P.(MD)Nos.8907 & 13560 of 2017
Kathamuthu : Petitioner
Vs.
1.The Accountant General (A & E),
O/o. Accountant General (A & E),
Chennai – 600 018.
2.The District Treasury Officer,
District Treasury Office,
Thanjavur.
3.The Sub- Treasury Officer,
Sub-Treasury Office,
Pattukkottai,
Thanjavur District. : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, praying for a Writ of Certiorarified Mandamus, calling for the
records of the impugned order in Na.Ka.No.20296/E/2016 dated
23.09.2016 passed by the third respondent at the instance of the first
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1/7
W.P.(MD)No.11558 of 2017
respondent and quash the same and consequently directing the
respondents to grant pension (PPO No.C182842/EDG) to the
petitioner without any recovery.
For Petitioner : Mr.S.Deenadhayalan
For Respondent No.1 : Mr.P.Gunasekaran
Standing Counsel
For Respondents 2 & 3 : Mr.S.Kameswaran,
Government Advocate
ORDER
This Writ Petition has been filed by a Head Master
challenging the impugned order dated 23.09.2016, passed by the
third respondent, calling upon the petitioner to pay a sum of
Rs.7,40,232/-, on account of the alleged excess payments made to
him towards pension.
2.The alleged excess payments made to the petitioner
pertains to the period from 01.01.2007 to 31.08.2016. The petitioner
retired from service on 31.05.2006 itself.
3.Learned Counsel for the petitioner would submit that the
impugned order passed by the third respondent is illegal and as
such, recovery cannot be made after long number of years from the
date of the petitioner's retirement. He would also submit that the
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petitioner is presently aged more than 75 years. In support of his
submission, learned Counsel for the petitioner also drew the
attention of this Court to the judgment of the Hon'ble Supreme Court
in the case of Jagdish Prasad Singh Vs. State of Bihar and
others reported in 2024 0 Supreme (SC) 649. The Hon'ble
Supreme Court in the aforesaid decision has followed the oft quoted
decision namely, State of Punjab and others Vs. Rafiq Masih
(White Washer) reported in (2015) 4 SCC 334 and has held that
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 is impermissible in law.
4.Learned Government Advocate appearing for the official
respondents would submit that on 04.10.2016, the petitioner has
addressed a letter to the second respondent authorising the second
respondent to make recoveries in respect of the alleged excess
payments.
5.However, learned Counsel for the petitioner would submit
that in view of the well settled law as laid down by the decisions of
the Hon'ble Supreme Court that no recoveries can be made beyond
the period of five years with regard to excess payments. Even if such
an undertaking was given by the petitioner, it is immaterial. He
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would also submit that the petitioner is aged more than 75 years and
for no fault of his, he should not be penalised after long number of
years from the date of his retirement, which happened in the year
2006.
6.A counter affidavit has also been filed by the third
respondent reiterating the contents of the impugned order and
reiterating that only due to the excess payments made by the
respondents to the petitioner towards his pension, the impugned
order has been passed correctly.
7.The law is now well settled by the decisions rendered by
the Hon'ble Supreme Court in the case of State of Punjab and
others Vs. Rafiq Masih (White Washer) reported in (2015) 4
SCC 334 as well as in the case of Jagdish Prasad Singh Vs. State
of Bihar and others reported in 2024 0 Supreme (SC) 649, that
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, is impermissible in law. In the case on hand also, the
respondents have made the excess payments to the petitioner for
more than five years ie., from 01.01.2007 to 31.08.2016 and only
under the impugned order after almost 10 years, a recovery order
has been issued by the third respondent to recover the alleged
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excess payments made to the petitioner, which is contrary to the well
settled law that no recovery can be made in respect of payments
made for a period of more than five years.
8.For the foregoing reasons, the impugned order dated
23.09.2016, passed by the third respondent has to be quashed and
this Writ Petition has to be allowed.
9.In the result, the impugned order dated 23.09.2016 is
hereby quashed and this Writ Petition is allowed. However, it is
made clear that with regard to the recovery that is already made,
prior to the passing of the impugned order, the petitioner is not
entitled to seek recovery of the same from the respondents as he has
chosen to file the writ petition only after the passing of the impugned
order and did not file the Writ Petition immediately after the first
recovery is made from the petitioner. There shall be no order as to
costs. Consequently, connected miscellaneous petitions are closed.
16.08.2024
Index :Yes / No
Internet : Yes / No
NCC : Yes/No
MR
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To
1.The Accountant General (A & E),
O/o. Accountant General (A & E),
Chennai – 600 018.
2.The District Treasury Officer,
District Treasury Office,
Thanjavur.
3.The Sub- Treasury Officer,
Sub-Treasury Office,
Pattukkottai,
Thanjavur District.
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ABDUL QUDDHOSE, J.
MR
16.08.2024
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