Madras High Court
Padma vs The Additional Chief Secretary on 8 January, 2024
2024:MHC:5687
W.P.No.8401 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 19.12.2023
Pronounced on 08.01.2024
CORAM:
THE HON'BLE Ms.JUSTICE R.N.MANJULA
W.P.No.8401 of 2021
and
W.MP.No.8949 of 2021
Padma ... Petitioners
Vs.
1. The Additional Chief Secretary,
Finance Department,
Secretariat, Chennai.
2. The Commissioner of Treasuries and Accounts,
Panagal Building,
No. 1, Jennis Road,
Saidapet, Chennai - 600 015.
3. The Treasury Officer,
District Treasury,
Coimbatore. ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, to issue a WRIT OF CERTIORARIFIED MANDAMUS to call for
the records on the file of the 1 respondent in G.O.(2U) No. 52 dated
Page No.1 of 20
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W.P.No.8401 of 2021
24.10.2018 and to quash the same as illegal and without jurisdiction and
consequently direct the Respondents to refund the cumulative incremental
benefits withheld so far from the Petitioner along with interest.
For Petitioner : Mr.Sunny Akara for
M/s.V.Srimathi
For Respondents : Mr.J.Ravindran, Addl.Advocate General
assisted by Mr. Arunkumar
Additional Government Pleader.
ORDER
This Writ Petition has been filed seeking an issuance of a Writ of
Certiorarified Mandamus to call for the records on the file of the 1 st
respondent in G.O. (2U) No. 52 dated 24.10.2018 and to quash the same
as illegal, without jurisdiction and consequently direct the Respondents to
refund the cumulative incremental benefits withheld so far from the
Petitioner along with interest.
2. The petitioner was working as an Additional Sub Treasury
Officer, Pollachi, Coimbatore District in July 2010 and was holding the
said post till 28.02.2011. She was on medical leave from 01.03.2011 to
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28.03.2011 and thereafter joined duty on deputation in the District
Treasury, Coimbatore on 29.03.2011. However, she was under the pay
roll in the Sub Treasury office, Pollachi till 30.6.2011. While she was
serving as Additional Sub Treasury Officer at Pollachi, she was engaged
in fixing the pension as per G.O.Ms.No.350, Finance(Pay Cell)
Department dated 09.09.2009.
2.1. One Balachander filed a Writ Petition in W.P.No.498 of 2016
seeking direction in connection with his pensionary benefits.
G.O.Ms.No.235 Finance (Pay Cell) Department dated 01.06.2010 was
issued for revision of pension for pensioners based on the
recommendation of the Financial Committee. Balachandar was also
eligible to get his upgraded revision of pay scale applicable to the post of
B.T Headmaster with effect from 01.10.2010. However, figures of
pensionery benefit due to Balachandar as per the above G.O. has been
wrongly entered. The pension benefit of one Balagangadaran was entered
for Balachandar due to oversight. Hence, Balachander was drawing
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excess pension amount than what was due to him, between 01.10.2010
to 30.04.2015 for a period of 55 months accruing to Rs.9,56,058/-.
2.3. As per G.O.No.702 Finance (Pay) Department dated
07.10.1988 if over payments made to a pensioner is found out by the
paying authority, executive orders for recovery can be passed and
recovery can be made.
2.4. After affording an opportunity to Mr.Balachandar, recovery
order vide proceedings in Na.Ka.1166/2015/A3 dated 04.05.2015 was
served an him. As per the request of Balachandar a sum of Rs. 8,000/- per
month was recovered from 01.10.2010 to 30.04.2015. Thereafter
Balachander has filed a Writ Petition in W.P.No.498 of 2016 to quash the
recovery proceedings and the said Writ Petition was allowed and the
recovery order was set aside
2.5. In view of the direction given in M.Janaki Vs. The District
Treasury Officer in W.P.(MD) No.23541 of 2015, recovery was made
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against the petitioner who was in charge at the time when entries were
made for disbursing excess pension to Balachandar under order G.O.(2U)
No.52 dated 24.10.2018, after initiating the Disciplinary Proceeding
against the petitioner. Aggrieved over the same, the petitioner has filed
this Writ Petition.
3. Heard, Mr.Sunny Akara, learned Counsel for the petitioner and
Mr.J.Ravindran, learned Additional Advocate General for the respondents
and perused the materials available on records.
4. Mr.Sunny Akara, learned counsel for the petitioner submitted
that Balachandar has obtained an order to quash the recovery proceedings
against him by suppressing the material facts that he was given with an
opportunity before passing the recovery order. As per clause 8 (2)(b) of
G.O.Ms.286, dated 28.08.2018, the ratio of responsibility in case of over
payments shall be as under:
“(b) If the overpayment occurs due to reasons solely
attributable to Pension Disbursing Authority i.e., Pension Pay
Office, Chennai / District Treasury Office/ Sub-Treasury Office, the
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ratio of responsibility will be as under:
(a) Dealing Accountant 50% of the overpaid amount
(b) Additional Sub Treasury Officer/ 25% of the overpaid amount
Sub Treasury Officer concerned
(c) Assistant Treasury Officer 25% of the overpaid amount
concerned
(In the forgoing, overpaid amount shall mean the amount that has
been overpaid and is not recoverable from the employee/pensioner/
family pensioner concerned in accordance with the Hon'ble Supreme
Court order in para -3 of the G.O. Ms. No.286 dated 28.08.2018).”
4.1. Though it is a joint and several responsibility, the recovery has
been made only against the petitioner to recover a heavy sum of
Rs.7,21,621/- in 60 instalments at the rate of Rs.13,621/-per month. The
disciplinary proceedings issued against the Accountant was dropped.
Apart from the recovery, the petitioner was also imposed with stoppage of
two increments with cumulative effect. The petitioner was subjected to
selective prosecution and it is a targeted harassment.
4.2. Even after knowing that the order in WP.No.498 of 2016 was
obtained due to suppression of material facts, the 1 st respondent had
failed to file a Writ Appeal. A hefty share of his salary is being sought to
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be deducted without any due appreciation of the facts surrounding the
incident and hence, the Writ Petition should be allowed.
5. Mr.J.Ravindran, learned Additional Advocate General for the
respondents submitted that the petitioner who was an Additional Sub
Treasury Officer, Sub Treasury, Pollachi had failed to check the arrears
calculation and fixation of pension and the audit volume of the pensioner
which is her primary duty. Without making proper scrutiny, the petitioner
made a wrong entry and that had resulted in excess payment to
Balachandar. The disciplinary proceedings initiated against another
delinquent by name Kasthuri was dropped because she has not prepared
and signed the connected Bills. Since the enquiry proceedings revealed
that the petitioner is solely responsible for the excess payment, she was
found guilty for the charges and punished. Since the excess payment was
made to Balachandar only because of the fault on the part of the
petitioner in compliance of G.O.Ms.286, Finance (Pension) Department,
dated 28.08.2018 recovery proceedings have been issued against the
petitioner.
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5.1. In fact the above G.O.Ms.286, Finance (Pension) Department,
dated 28.08.2018 itself has been passed consequent to the direction given
by the Madurai Bench of this Court in W.P.(MD)No.23541 of 2015.
Since the petitioner alone is responsible for all the mistakes, she cannot
shriek away her responsibility and hence, the petition should be
dismissed.
6. The unfortunate petitioner had made the entries for disbursal of
pension as against Balachandar instead of making it against one
Balagangahadaran and this has resulted excess pension being paid to
Balachandar. The excess payment accrued to the tune of Rs. 9,56,058/-.
Subsequently disciplinary proceedings have been initiated against the
petitioner and yet another staff and ultimately the guilt against the
petitioner was proved and and she was given with the punishment of
stoppage of two increments with cumulative effect. However the charge
against the other person was dropped.
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7. It is true that as per clause 8 (2)(b) of G.O.Ms.286, Finance
(Pension) Department, dated 28.08.2018, whenever over payments are
made by the Dealing Accountant, the Additional Sub Treasury Officer/
Treasury Officer and the Assistant Treasury Officer are responsible to
pay back the excess payment in the ratio of 50:25:25 [ 2:1:1]. But in the
disciplinary proceedings, it is seen that the petitioner who is ultimately
responsible for all the wrong entries, even though there was no confusion
in preparing the bill and other related proceedings. Since the petitioner
omitted to scrutinise the records properly before making the relevant
entries as against the pensioners, it resulted in excess payment to
Balachandar.
8. Even according to the respondents, Balachandar was aware of
his undue excess payment, but he remained silent. Before issuing
recovery proceedings against Balachandar for recovering the excess
payment made to him, he was given with an opportunity to make his
submission and in which, he accepted the receipt of excess payment and
he requested to deduct it at the rate of Rs.8,000/- per month from his
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pension. The instalment pattern for recovery of a sum of Rs.7,21,621/- in
60 instalments would be Rs.12,000/- x 59 + Rs.13,621/- x 1. Some of the
instalments have also been recovered from the pension amount of
Balachandar.
9. Later, Balachandar filed a Writ Petition in W.P.No.498 of 2016
and obtained an order to quash the recovery proceedings and thus he got
happily relieved. On perusal of the order in W.P.No.498 of 2016, it is seen
that the Hon'ble Single Judge has chosen to allow the Writ Petition for the
reason that excess payment has been made to a pensioner by name
Balachandar for none of his fault. Reliance was placed on the case of
State of Punjab and others Vs Rafiq Masih (White Washer) and others
[reported in (2015) 4 SCC 334] popularly called as 'White Washer case'.
In the said judgement, it is held that no recovery can be imposed on a
retired employee if the fixation of salary or any other monetary benefits
was erroneously made and thus an excess payment was made to him. The
relevant paragraph No.18 of the said judgment is extracted here under:
“18.It is not possible to postulate all situations of hardship,
which would govern employees on the issue of recovery, where
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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).
(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 employer's right to recover.”
10. The Hon'ble Supreme Court has charted out the above points
on certain equitable grounds and not to allow any individual to enjoy an
intentional unlawful enrichment. In the instant case, excess payment was
made to Balachandar and he was also conscious of getting excess
payment and at some point of time, he himself had requested to recover
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the excess payment in monthly instalments at the rate of Rs.8,000/- per
month.
11. Having said that as an afterthought he filed the Writ Petition by
suppressing the fact that he was given with a notice before recovery. By
suppressing the material facts, he obtained an order in his favour.
12. The government respondents who are well aware of the
dishonest intention in the mind of Balachandar in suppressing the
material facts before the Court, ought to have filed a detailed counter by
narrating the facts behind the recovery. At least after disposal of the writ,
they ought to have obtained proper legal opinion and taken steps to file
an Appeal. But the Government respondents omitted to do both.
13. No doubt the officer in-charge is responsible for excess
payment and he/she should also face the consequences of his/her own
negligent action. As per G.O.Ms.286, Finance (Pension) Department,
dated 28.08.2018, if excess payment is made due to wrong pay fixation,
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the persons who are all dealing the bill and the payment is responsible for
recovery. The case of the petitioner is on the distinct fact that she had
ultimately made entires and during such course she had mistakenly
posted the entry and hence, she alone was responsible for the mistaken
excess payment and no one else. So it is unnecessary to get into the
modus or other facts through which the excess payment was made to
Balachandar.
14. If a person got the excess payment due to the mistake of
someone else and enjoyed the same without knowing, it may not be fair
on the doer to demand recovery of the excess at any future point of time
from him. It is obviously because the person concerned would have
utilised the amount without knowing that it was not the amount due to
him and that he should pay it back.
15. But in the case in hand during the first receipt of the excess
pension itself Balachandar would have been aware of the excess of
Rs.11,051/-. Balachandar's monthly pension is Rs.12,149/- per month but
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a sum of Rs.23,200/- was credited in his account. After receiving the
notice, he was even fair enough to accept the fact before the concerned
authorities and agreed to get it recovered in instalments at the rate of
Rs.8,000/- per month and that was also being carried out for some time.
16. However, in a subsequent Writ Petition filed by him, a
direction has been given by the Madurai Bench of this Court in
W.P.(MD)No.23541 of 2015 by taking into consideration of the loss
sustained to the government for the fault of the officers who are
responsible for making the excess payment. The officer who caused the
excess payment cannot be allowed to go scot-free. But that cannot be the
reason for allowing the other wrong doer to go scot-free, though he was
conscious of the fact of recovering the excess payment which was not due
to him.
17. If that is the spirit of issuance of the directions of the Hon'ble
Supreme Court in White Washer case (cited supra), no one in the
categories mentioned in that judgement will come forward voluntarily and
accept the mistaken payment made to them, even though they were aware
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of the same at the time of receipt of it. So the respondents have wrongly
understood the whole object and purpose of the directions of the Hon'ble
Supreme Court and also the directions of Madurai Bench of this Court
and had acted in a negligent manner.
18. The petitioner was made to suffer a monetary loss by way of
loosing her two increment with cumulative effect. Even though it may not
be the reason to show mercy on her and to relieve her from the loss
caused due to her negligent actions, the respondents cannot write the
entire liability on the head of the petitioner. It ought to have been brought
to the notice of the Court during the proceedings in WP.No.498 of 2016
by stating that the case in hand is based on different facts and the amount
involved was also hefty.
19. The responsibility fixed upon the officers to bear the loss
should be in addition to the responsible action taken by the government
against the person who enjoyed the wrongful benefit and perpetuated the
same by making wrong representation before the Court. The
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proportionality of recovery fixed against the officers, in-charge of making
excess payment alone will not absolve the responsibility of the
respondents and that can not allow someone to take undue advantage of
the situation and enjoy the wrong payment as a bounty given to him.
20. Even after the petitioner has filed this Writ Petition, the
respondents did not think about challenging the order passed in
WP.No.498 of 2016 by taking appropriate proceedings to condone the
delay. So far as the petitioner is concerned, she was holding the seat of
Additional Sub Treasury Officer for a short tenure. But the wrong
payment continued to be made to Balachandar even after she got shifted
from that section. While issuing orders for recovery against the official
who was in-charge for the over payment, it should also be fair and proper
for government to stop further such payments by putting proper check
and balance in place.
21. Had there been an inspection at any frequent intervals, the
mistaken entry could have been spotted and the wrong payment would
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not have accumulated to the tune of Rs.9,56,028/-. So the failure on the
part of the respondents should not become a burden to be carried out by a
single individual. Had the respondents challenged the order passed in
W.P.No.498 of 2016 by properly placing all material facts before the
Court and still failed, there can be some reason to resort to the whole of
the recovery proceedings against the petitioner.
22. The government order in G.O.Ms.286 dated 28.08.2018 cannot
be the short circuit to shriek away the responsibility, otherwise to be
shouldered by the Government machinery. Despite general directions
were given in the judgment of the Hon'ble Supreme Court if special facts
of this case was brought to the notice to the Court and established how
this is unique from the general application, that would have helped the
learned single Judge to appreciate the matter in a different perspective.
Since the respondents did not tackle the issue in a proper manner and
have fixed the whole of the recovery from the purse of the petitioner, I feel
it is appropriate to set aside the impugned order.
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23. In the result, the Writ Petition is partly allowed and the
impugned order passed by the 1 respondent in G.O.(2U) No. 52 Finance
(T&A-I) Department, dated 24.10.2018 is set aside. However, this Court
is not inclined to interfere with the stoppage of two increments with
cumulative effect imposed as a punishment for the negligent act done by
the petitioner. And the petitioner is not entitled to get the recovery of the
amount so far recovered from her, until the whole of the recovery is made
from Balachandar. Once the recovery process as against Balachandar is
completed, the amount recovered from the petitioner shall be refunded to
her. No costs. Consequently, connected miscellaneous petitions are
closed.
08.01.2024
Index : Yes
Internet : Yes
Speaking
Neutral Citation : Yes
jrs
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To
1. The Additional Chief Secretary,
Finance Department,
Secretariat, Chennai.
2. The Commissioner of Treasuries and Accounts,
Panagal Building,
No. 1, Jennis Road,
Saidapet, Chennai - 600 015.
3. The Treasury Officer,
District Treasury,
Coimbatore.
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R.N.MANJULA, J.
jrs
and
08.01.2024
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