Madras High Court
A.Jeyamani vs The State Of Tamil Nadu on 28 October, 2024
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
Writ Petition No.2863 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.10.2024
CORAM
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
Writ Petition No.2863 of 2023
and
W.M.P.No.2978 & 2980 of 2023
A.Jeyamani
S/o.Late Arunachalam ... Petitioner
Vs.
1.The State of Tamil Nadu,
represented by its
Additional Chief Secretary to the Government,
Home (Police) Department,
Fort St.George,
Chennai - 600 009.
2.The Director General of Police (L&O),
(Head of Police Force),
Office of the Director General of Police,
Mylapore, Chennai - 600 004.
3.The Commissioner of Police,
Chennai City, Vepery,
Chennai - 7.
4.The Joint Commissioner of Police, (East Zone)
Greater Chennai Police,
Egmore, Chennai. ... Respondents
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1/16
Writ Petition No.2863 of 2023
Writ Petition filed under Article 226 of the Constitution of India
seeking issuance of a Writ of Certiorarified Mandamus calling for the
records in pursuant to the impugned order issued by the fourth
respondent in proceedings Na.Ka.n.Pension/EZ/E/275100-101/2021
dated 31.05.2022 and quash the same and to consequently direct the
respondents to pay subsistence allowance to the petitioner from
01.02.2021 to till revocation of the suspension of the petitioner.
For Petitioner : Mr.V.I.Prashanth
For Respondents : Mr.P.Kumaresan
Additional Advocate General
assisted by Mr.P.Ganesan,
Government Advocate
*****
ORDER
The facts of this case and the issue involved in the present writ
petition were captured in the earlier order passed on 22.10.2024 and the
same is extracted hereunder:
"This writ petition has been filed challenging the
proceedings of the 4th respondent dated 31.05.2022, wherein steps
were taken to recover a sum of Rs.13,70,666/- which was the
excess payment made to the petitioner for the period from
01.11.2016 to 31.01.2021.
2.The case of the petitioner is that he was working as a
Head Constable and by proceedings dated 31.10.2016, he was not
permitted to retire from service on the ground that a criminal case
is pending against him and accordingly, subsistence allowance
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was directed to be paid to the petitioner equal to the amount of
provisional pension with effect from 01.11.2016.
3.The grievance of the petitioner is that the 4 th
respondent issued the impugned proceedings dated 31.05.2022
whereby a sum of Rs.13,70,666/- was sought to be recovered
from the petitioner on the ground that excess payment has been
made to the petitioner for the period 01.11.2016 to 31.01.2021.
This order has been put to challenge in the present writ petition.
4.The respondents have filed counter affidavit. The
relevant portions are extracted hereunder:
“9.It is respectfully submitted that the
Petitioner is only eligible to get subsistence grant
pay, restricted to provisional pension from the date
of his retention of his service i.e., 31.10.2016, but he
has got pay as he was paid as on 31.10.2016 for the
period from 01.11.2016 to 31.01.2021. The
Petitioner has complete knowledge that he is not
eligible for full pay, but knowing the same, he did
not inform to the office about receiving the pay
wrongfully with an intention to cause loss to the
government exchequer.
The details of the excess payment
irregularly received by the Petitioner is as follows:
Pay and other allowanced
paid to the petitioner for
the period from 01.11.2016
to 31.01.2021 - Rs.20,08.574/-
Eligible subsistence
allowance - Rs.6,37,906/-
Excess payment already
received by the petitioner - Rs.13,70,666/-
10.It is submitted that with regard to
contents raised in Grounds (a) to (g) of the
Petitioner affidavit are unsustainable and there is no
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contrary to law and in violation of the principle of
natural justice in issuing the order as alleged by the
Petitioner. More over the Joint Commissioner of
Police, East Zone, Chennai vide
Na.Ka.No.Pension/EZ/E-275100-101/2021, dated
31.05.2022 calling for explanation from the
petitioner for getting full payment as he was not
eligible to the same for the period from 01.11.2016
to 31.01.2021 and instructing to pay a sum of
R.13,70,666/- ie., the excess payment of subsistence
allowance to the Government account within a
period of four weeks and further, if failure to pay,
both criminal and departmental action will be
initiated against him.”
5. The learned counsel for the petitioner submitted that
the impugned proceedings of the 4 th respondent is liable to be
interfered by this Court on two grounds and they are:
(a) The petitioner is a Group-C category employee and
therefore, for a wrongful fixation of pay, the recovery cannot be
made from the petitioner. To substantiate this submission, the
learned counsel relied upon the judgment of the Hon'ble Supreme
Court in the case of State of Punjab Vs. Rafiq Masih (White
Washer) reported in 2015 (5) CTC 455 and
(b) The impugned order was passed by the 4 th
respondent without issuing any notice to the petitioner and
without affording any opportunity and therefore, the same is liable
to be interfered for violation of principles of natural justice.
6. Per contra, the learned Additional Advocate General
appearing on behalf of the respondents submitted that the
petitioner attained the age of superannuation on 31.10.2016. The
petitioner was facing a criminal case which is in the stage of trial
before the concerned Court. In view of the same, he was placed
under suspension and he was not permitted to retire from service
on reaching the age of superannuation on 31.10.2016. The
petitioner was only eligible to get the subsistence allowance which
will be equal to the amount of provisional pension with effect
from 01.11.2016. Whereas, due to mistake, the full pay was made
to the petitioner towards subsistence allowance for the period from
01.11.2016 to 31.01.2021. Thereby, a sum of Rs.20,08,574/- was
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paid and whereas the petitioner is only entitled for Rs.6,37,906/-
towards subsistence allowance. In view of the same, excess
amount paid to the petitioner was sought to be recovered.
7. The learned Additional Advocate General submitted
that even if an opportunity is given to the petitioner, the fact
remains that excess pay was made to the petitioner for the period
from 01.11.2016 to 31.01.2021 and there can be no defense for
receiving such excess pay beyond what was payable to the
petitioner towards subsistence allowance. The learned Additional
Advocate General further submitted that the petitioner cannot be
permitted to retain the excess amount paid and it has to be
necessarily recovered.
8. The learned counsel appearing on either side sought
for some more time to place the relevant judgments before this
Court.
9. Post this case under the caption 'part heard cases' on
28.10.2024 at 02.15 PM."
2. Heard Mr.V.I.Prashanth, learned counsel for petitioner,
Mr.P.Kumaresan, learned Additional Advocate General appearing for
respondents.
3. When the matter was taken up for hearing today, learned
counsel for petitioner relied upon the judgment of the Apex Court in
State of Punjab and others v. Rafiq Masih (White Washer) and others
[2015 (4) SCC 334] and also the subsequent judgment of the Apex court
in Jagdish Prasad Singh v. State of Bihar and others [2024 (5) CTC
433].
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4. Per contra, learned Additional Advocate General appearing
on behalf of respondents placed reliance upon the order passed by this
Court in W.P.(MD) No.8032 of 2015 etc. batch dated 14.06.2019.
Learned Additional Advocate General specifically relied upon paragraph
Nos.28 to 30 in that order and for proper appreciation, the same is
extracted hereunder:
"28. The learned counsel for the fourth respondent /
University relied upon the decision reported in the case of State of
Punjab and others v. Rafiq Masih (White Washer) and
others, (2015) 4 SCC 334, the Apex Court, in paragraph-18, has
held as follows:-
“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:-
[1] Recovery from employees belonging to Class-III and
Class-IV service (or Group ‘C’ and Group ‘D’ service).
[2] Recovery from retired employees, or employees who
are due to retire within one year, of the order of recovery.
[3] 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.
[4] Recovery in cases where an employee has wrongfully
been required to discharge duties of a higher post, and has
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been paid accordingly, even though he should have
rightfully been required to work against an inferior post.
[5] 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.”
29. There is no quarrel over the said proposition laid
down. Also, this Court wishes to point out that, in a catena of
decisions, the Courts have granted relief against recovery of
excess payment of emoluments / allowances if: (a) the excess
amount was not paid on account of any misrepresentation or fraud
on the part of the employee, and (b) if such excess payment was
made by the employer by applying a wrong principle for
calculating the pay/allowance or on the basis of a particular
interpretation of rule/order, which is subsequently found to be
erroneous.
30. Also in the case of Sahib Ram v. State of Haryana,
Shyam Babu Verma v. Union of India, Union of India v. M.
Bhaskar, V. Gangaram v. Director, Col. B.J. Akkara (Retd.) v.
Govt. of India, Purshottam Lal Das v. State of Bihar, Punjab
National Bank v. Manjeet Singh and Bihar SEB v. Bijay Bhadur,
it has been held that the relief against recovery is granted by
courts not because of any right in the employees, but in equity,
exercising judicial discretion to relieve the employees from the
hardship that will be caused if recovery is ordered. But, if in a
given case, it is proved that the employee had knowledge that the
payment received was in excess of what was due or wrongly paid,
or in cases where the error is detected or corrected within a short
time of wrong payment, the matter being in the realm of judicial
discretion, courts may, on the facts and circumstances of any
particular case, order for recovery of the amount paid in excess.
5. Learned Additional Advocate General also relied upon the
order of the Division Bench of this Court in B.Usha v. Principal Labour
Judge and others [2019 SCC OnLine Mad 16765]. The relevant
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portions are extracted hereunder:
"20. The Learned counsel appearing for the
Respondents has also placed reliance on the judgment of our
Hon'ble Apex Court reported in (2012) 8 SCC 417 : AIR 2012
SC 2951 in the case of Chandi Prasad Uniyal v. State of
Uttarakhand, wherein, in Paragraph Nos.16 & 17, which reads as
under:
''16.We are concerned with the excess payment
of public money which is often described as ''tax payers
money'' which belongs neither to the officers who have
effected over -payment nor that of the recipients. We fail to
see why the concept of fraud or misrepresentation is being
brought in such situations. Question to be asked is whether
excess money has been paid or not may be due to a bona
fide mistake. Possibly, effecting excess payment of public
money by Government Officers, may be due to various
reasons like negligence, carelessness, collusion,
favouritism etc, because money in such situation does not
belong to the payer or the payee. Situations may also arise
where both the payer and the payee are at fault, then the
mistake is mutual. Payments are being effected in many
situations without any authority of law and payments have
been received by the recipients also without any authority
of law. Any amount paid/received without authority of law
can always be recovered barring few exceptions of extreme
hardships but not as a matter of right, in such situations
law implies an obligation on the payee to repay the money,
otherwise it would amount to unjust enrichment.
17. We are, therefore, of the considered view
that except few instances pointed out in Syed Afbdul Qadir
case (2009 AIR SCW 1871) (supra) and in
Col.B.J.Akkara (Retd.) case (2006 AIR SCW 5252)
(supra), the excess payment made due to wrong/irregular
pay fixation can always be recovered.''
21. By applying Article 142 of the Constitution of
India, to the above said judgment reported in (2015) 4 SCC 334
(cited supra), the Hon'ble Apex Court made an observation that
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recovery cannot be treated as a binding precedent. It has to be
confined to the peculiar facts of that case.
22. Further, in the decision of the Hon'ble Supreme
Court in Indian Bank v. ABS Marine Products Private Limited,
(2006) 5 SCC 72 : AIR 2006 SC 1899, it is observed and held
that ''Courts should be careful to ascertain and follow the Ratio
Decidendi and not the relief given on special facts, exercising
power under Article 142 of the Constitution of India. Indeed, any
sum received without an authority of Law can be recovered from
the concerned person because of the simple fact that law enjoins
an implied obligation on the part of the recipient to repay the
money. Otherwise, it is a clean case of unlawful gain/unjust
enrichment, as the case may be.
23. At the same time, it is the contention of the Learned
Counsel for the First and Second Respondents that at the time of
wrong fixation of salary, the Petitioner was working as a Head
Ministerial Officer at Judicial Magistrate II, Tirupattur. The said
fact was not disputed on the side of the Petitioner. In common, in
all Magistrate Courts, the Head Ministerial Officer is the Next
Officer to the Presiding Officer. He only maintains the Service
Register of all the employees working in the above said Court.
The Head Ministerial Officer can only prepare Pay Bill and put to
his counter signature before getting approval from the Pay
Drawing Officer, who is the Judicial Magistrate. In this case, the
alleged occurrence happened only at the time, when the Petitioner
was working as a Head Ministerial Officer at Tirupattur. After the
retirement, now, the Petitioner contended that the said error was
committed out of her knowledge. The said submission of the
Petitioner is not having any merit and without showing the
relevant documents, this Court is not inclined to accept the
contention raised by the Petitioner straight away.
24. In fact, in the Government Order vide in
G.O.Ms.No.286, Finance (Pension) Department dated
28.08.2018 passed by the Government of Tamilnadu, it is seen
that based on the judgment of our Hon'ble Apex Court, issued a
clarification in respect to the mode of recovery, as already pointed
out by the Learned counsel for the Petitioner. Further, in the said
Government Order, the responsibility was fixed on the Officer
attributable to the Bill Passing Authority and ordered to recover
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the loss from the said Officers. But, in the case on hand, as already
discussed, an error was committed only by the Writ Petitioner and
not by the act of the other Officers. Further, as per the case of the
Petitioner, the excess amount was recovered from the DCRG, to
which she is entitled to receive.
25. In this aspect, it is relevant and useful to refer Rule
70 of the Tamilnadu Pension Rules, 1978 which reads as under:-
''70.Recovery and adjustment of Government
dues:-(1) It shall be the duty of every retiring Government servant
to clear all Government dues before the date of his retirement.
(2) Where a retiring Government servant does not clear the
Government dues and such dues as ascertainable
(a) an equivalent cash deposit may be taken from him, or
(b) out of the gratuity payable to him an amount equal to that
recoverable on account of ascertainable Government dues shall be
deducted there from.
26. So also the above said provision is very clear that
the ascertainable Government dues includes ''Over payment of
Pay and Allowances''. Accordingly, the First Respondent is having
the power to recover the ''Over payment''. Further, the said excess
payment was recovered, only at the time of giving the Pension
benefits to the Petitioner. Hence, it cannot be said that the
recovery order was made after a long gap of time. More than that,
as indicated by the Third Respondent, in the Service Register
maintained by the officer of the employer, pertaining to the
Petitioner, it was clearly held that the Petitioner gave an
undertaking in respect to the recovery of over payment. After,
giving assurance for recovering the over payment, now, the
Petitioner filed the present Writ Petition and prayed for allowing
the same, in order to waive the over payment, which was received
nearly for the past 10 years. So also, the prayer sought for by the
Petitioner in this Writ Petition is not based on any sound legal
principle."
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6. Learned Additional Advocate General submitted that eight
officers, who were instrumental in fixing the provisional pension for the
petitioner, were dealt with by initiating departmental proceedings and
punishment of censure was imposed against all those officers.
7. The only issue that arises for consideration is as to whether
the impugned proceedings issued by the fourth respondent dated
31.05.2022 requires the interference of this Court.
8. It is not in dispute that the petitioner was receiving
subsistence allowance at the rate of 50% from 11.08.2005 to 11.02.2006.
Thereafter, the petitioner was receiving 75% as subsistence allowance.
When the provisional pension was directed to be paid to the petitioner
through proceedings dated 31.10.2016 by the Joint Commissioner of
Police, Egmore, Chennai, it was made clear that the provisional pension
shall be equal to the subsistence allowance that was paid to the petitioner.
It was also made clear that the rights that had accrued to the petitioner
shall freeze at the level reached on the date of retirement and the salary
shall not exceed the provisional pension which would have accrued to
him on that date.
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9. As stated in the previous order, this Court must see if any
useful purpose will be served in setting aside the order and sending the
petitioner back to participate in a fresh enquiry. In other words, what will
be the defence that will be taken by the petitioner even if he is sent back
to the fourth respondent for participating in a fresh enquiry. The rules of
natural justice cannot be mechanically applied in all cases and one
exception to this rule is where Useless formality theory applies. There
may be occasions where no useful purpose will be served in ordering for
an enquiry on the ground of violation of principles of natural justice when
such opportunity will be of no use and the authority will be able to come
to the very same conclusion even if such an opportunity is given.
10. In the case in hand, even if the petitioner goes back to the
fourth respondent, the fact remains that what was payable to the
petitioner was only a provisional pension, which is equivalent to the
subsistence allowance that was received by the petitioner. The petitioner
can never justify before the fourth respondent with respect to the full
salary that was received by him every month towards provisional pension.
Therefore, this Court holds that the impugned proceedings cannot be
interfered on the ground of violation of principles of natural justice.
11. The next issue to be considered is as to whether the excess
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amount paid to the petitioner can be recovered from the petitioner.
12. Learned counsel for petitioner heavily relies upon the
White Washer's case to justify that recovery proceedings initiated by the
fourth respondent is unwarranted. There is no quarrel on the proposition
of law that has been laid down in White Washer's case. The Courts
normally grant the relief against recovery of excess payments made if
(a) the excess amount was not paid on account of any misrepresentation
or fraud on the part of the employee; and
(b) such excess payment is made by the employer by applying a wrong
principle of calculating the pay/allowance or on the basis of a
particular interpretation of the rule/order, which is found to be
erroneous subsequently.
13. The judgments on this issue have consistently taken note of
one factor and that factor is if in a given case, the employee had the
knowledge that the payment received was in excess of what was payable
to him and even in cases where the error is detected or corrected within a
short time of such wrong payment, the Courts normally interfere with the
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same.
14. In the case in hand, the petitioner was kept under
suspension. For a particular period, he was receiving 50% of the salary as
subsistence allowance. Thereafter, he started receiving 75% of the salary
as subsistence allowance. When he reached the age of superannuation,
the order passed by the concerned authority shows that the provisional
pension that is payable to the petitioner every month will be equal to the
subsistence allowance that is payable to the petitioner. The petitioner is
aware of the subsistence allowance that was paid to him when such an
order was passed in the year 2016. While so, when the petitioner started
receiving the provisional pension, he started receiving full salary, which
the petitioner must have definitely known not to represent the subsistence
allowance that is due and payable to the petitioner. Since the petitioner
was getting a substantial amount, he found it convenient to keep receiving
this amount and ultimately, it came to light. It is at this point, proceedings
were initiated by the fourth respondent for recovery of excess amount
paid to the petitioner.
15. The Courts must always keep in mind that what is paid as a
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salary to a public servant is the tax payers money which neither belongs
to the officials who effected such over payment nor to the recipients.
While dealing with this issue, the principle that was enunciated by the
Apex Court in the judgment in Chandi Prasad Uniyal v. State of
Uttarakhand [2012 (8) SCC 417] must be kept in mind. Any amount
paid without authority of law can always be recovered, more particularly,
in a case where the person, who was receiving that amount knew that he
is receiving in excess than what he is actually entitled to. The petitioner,
in this case, was receiving full salary towards the provisional pension,
whereas, what he is entitled to is the provisional pension, which is
equivalent to the subsistence allowance that is payable to the petitioner.
16. In the light of the above discussion, this Court holds that
the judgment of the Apex Court in White Washer's case will not come to
the aid of the petitioner.
17. In the result, this Court holds that the proceedings of the
fourth respondent dated 31.05.2022 does not suffer from any illegality
and it does not warrant the interference of this Court.
N.ANAND VENKATESH, J
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gm
In the result, this writ petition is dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
28.10.2024
Neutral Citation: Yes/No
Index: Yes/no
Speaking Order/Non-Speaking Order
gm
To
1.The Additional Chief Secretary to the Government,
Home (Police) Department,
Fort St.George,
Chennai - 600 009.
2.The Director General of Police (L&O),
(Head of Police Force),
Office of the Director General of Police,
Mylapore, Chennai - 600 004.
3.The Commissioner of Police,
Chennai City, Vepery,
Chennai - 7.
4.The Joint Commissioner of Police, (East Zone)
Greater Chennai Police,
Egmore, Chennai.
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