Madras High Court
D.Saraswathi vs The District Treasury Officer on 30 October, 2024
W.P.No.19414 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.10.2024
CORAM:
THE HONOURABLE MR.JUSTICE G.ARUL MURUGAN
W.P.No.19414 of 2014
and M.P.Nos.1 & 2 of 2014
D.Saraswathi ... Petitioner
versus
1.The District Treasury Officer,
Villupuram.
2.The Assistant Treasury Officer,
Vanur, Villupuram District. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certiorarified Mandamus, calling for the records
in pursuant to the impugned orders of recovery issued by the second
respondent in proceeding Na.Ka.No.A1/477/2014 dated 04.07.2014 and the
subsequent impugned order of recovery issued by the second respondent in
proceeding Na.Ka.No.A1/477/2014 dated 11.07.2014 and quash the same
and direct the respondents to pay the revised pension as per the Accountant
General authorisation dated 13.02.2014.
For Petitioner : Mr.N.Om Prakash
for Mr.R.Prem Narayan
For Respondents : Mr.Stalin Abhimanyu
Additional Government Pleader
1/11
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W.P.No.19414 of 2014
ORDER
The writ petition is filed challenging the orders of recovery dated
04.07.2014 and 11.07.2014 issued by the second respondent and for
consequential direction to pay the revised pension as per the Accountant
General authorisation dated 13.02.2024.
2. According to the petitioner, she is a pensioner, who worked as
Headmistress and got superannuated on 31.01.1995. The pensioners, who
retired between 01.06.1988 and 31.12.1995 contested the issue in respect of
payment of Dearness Allowance for revising the pension had instituted
proceedings before the Court and ultimately the issue went upto the Hon'ble
Supreme Court and ended in favour of the pensioners by the judgment of the
Hon'ble Supreme Court in Civil Appeal Nos.8848 to 8870 of 2012 dated
17.01.2013. In compliance to the decision of the Hon'ble Apex Court, the
Government had issued G.O.(Ms)No.363, Finance Department dated
23.08.2013.
3. Pursuant to the above Government Order, the Accountant
General had revised the pension and issued the authorisation to the first
respondent vide proceedings dated 13.02.2014. In compliance to the same,
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the pension of the petitioner was revised and the difference amount was also
paid to her. All of a sudden, without issuing any notice and affording an
opportunity to the petitioner, by impugned proceedings 11.07.2014, a sum
of Rs.4,20,731/- was sought to be recovered from the petitioner by directing
her to deposit the same. Assailing the same, the petitioner had preferred the
above writ petition.
4. The learned counsel for the petitioner submitted that even
though the revision in pension was granted only based on the authorisation
issued by the Accountant General on 13.02.2014, which was in due
compliance to the decision of the Hon'ble Supreme Court, which resulted in
the issuance of G.O.(Ms)No.363, Finance Department dated 23.08.2013
and the benefits were paid, the impugned orders seeking to recover the
amounts by refixing the pension is issued, without even issuing any notice
and affording an opportunity to the petitioner, which is, in violation of the
principles of natural justice. It is further contended that since the petitioner is
a pensioner who had retired from service as early as in the year 1995, the
impugned recovery is impermissible in view of the judgment of the Hon'ble
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Supreme Court in the case of State of Punjab Vs. Rafiq Masih (White
Washer) reported in (2015) 4 SCC 334.
5. Per contra, the learned Additional Government Pleader for the
respondents, even though he had not filed the counter affidavit, fairly
submitted that the orders refixing the pension of recovery have been passed,
without affording an opportunity to the petitioner and therefore the matter
may be remitted back to the respondents for fresh consideration, after
affording necessary opportunity to the petitioner. While doing so, the issue in
respect of the recovery will also be considered in view of the settled decision
in White Washer's case stated supra.
6. Heard the submissions made by the learned counsel appearing
on both sides and perused the materials available on record.
7. Admittedly, the petitioner, who had worked as Headmistress in
the Government School, retired on 31.01.1995 and she is receiving pension
from the respondents. Several pensioners who had retired between
01.06.1988 and 31.12.1995 had instituted proceedings before the Court in
respect of payment of Dearness Allowance and consequently revised the
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pension. The issue ultimately went upto the Hon'ble Supreme Court and by
its judgment dated 17.01.2013 in Civil Appeal Nos.8848 to 8870 of 2012,
the issue ended in favour of the pensioners. In compliance to the order of the
Hon'ble Apex Court, G.O.(Ms)No.363, Finance Department dated
23.08.2013 came to be passed, extending the benefits for those employees
who retired between 01.06.1988 and 31.12.1995.
8. As per the Government Order issued in G.O.(Ms)No.363,
Finance Department dated 23.08.2013, the Accountant General had revised
the pension to the petitioner and had issued authorisation to the first
respondent on 13.02.2014. Pursuant to which, the pension was revised and
the difference in amount was also paid to the petitioner.
9. While so, the impugned order dated 04.07.2014 was issued by
which the petitioner was directed to deposit a sum of Rs.2,63,081/-
immediately to the treasury account. The impugned order reads that the
same was passed based on the phone instructions received from the Treasury
Officer. The relevant portion is extracted hereunder:-
“nghUs; : xa;t+jpak; murhiz vz;:363-d; gb
jpUj;jpa xa;t+jpak;; - toq;fpaJ
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toq;fpa njhifia kPs gpbj;jk; nra;jy; - njhlh;ghf
ghh;it : fUt+y mYtyh; khtl;l fUt+yk; tpOg;Guk;
mth;fspd; njhiyNgrp jfty;
ghh;itapy; fhZk; fUt+y mYtyh; mth;fspd;
njhiyNgrp jftypd; gb murhid vz;: 363-d; gb
jpUj;jpa xa;t+jpa njhif &.2>63>081/- (&gha; ,uz;L
,yl;rj;J mWgj;jp %thapuj;J vz;gj;jp xd;W kl;Lk;)
,f;fbjk; fpilj;j cld; muR fzf;fpy; Nrh;jj ; pl
mwpTWj;jg;gLfpwhh;fs;.”
10. Subsequently, another impugned order dated 11.07.2014 was
issued stating that wrong calculation has been made in the earlier order
dated 04.07.2014 and the petitioner was directed to deposit a sum of
Rs.4,20,731/- immediately to the treasury account. The relevant portion is
extracted hereunder:-
“nghUs; : xa;t+jpak; murhiz vz;:363-d; gb
jpUj;jpa xa;t+jpak;; - toq;fpaJ
toq;fpa njhifia kPs gpbj;jk; nra;J -
mDg;Gjy; - rhh;G
ghh;it : fUt+y mYtyh; khtl;l fUt+yk; tpOg;Guk;
mth;fspd; njhiyNgrp jfty;
ghh;itapy; fhZk; fUt+y mYtyh; mth;fspd;
njhiyNgrp jftypd; gb murhid vz;: 363-d; gb
jpUj;jpa xa;t+jpa njhif &.4>20>731/- (&gha; ehd;F
,yl;rj;J ,Ugj;jhapuj;J VOE}w;ep Kg;gj;jp xd;W
kl;Lk;) muR fzf;fpy; nrYj;jg;glNtz;Lk;.
jq;fSf;F fbjj;jpy; &.2>63>081/- ,j;njhif
jtWjyhf nrYj;JkhW njhptpf;fg;gl;Ls;sjhy;>
,j;jpUj;jpa njhifapid md;dhh; muR fzf;fpy;
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&.4>20>731/- &gha; nrYj;jpl mwpTWj;jg;gLfpwJ.
nrYj;jg;gl;l tptuj;jpid ,t;tYtfj;jpw;F efy;
mDg;GkhW Nfl;Lf; nfhs;sg;gLfpwhh;.; ”
11. On perusal of the impugned orders, it reveals that the same
have been passed without issuing any notice affording an opportunity to the
petitioner. As per the impugned orders, the pension is sought to be revised
and only pursuant to which, this amount is sought to be recovered. While so,
necessarily the respondents ought to have issued notice to the petitioner and
only after affording her necessary opportunity, a decision would have been
taken.
12. In the absence of any such notice, this Court is of the
considered view that the impugned orders issued by the respondents is in
violation of the principles of natural justice. Further, in view of the settled
decision in White Washer's case stated supra, any order of recovery from
the employees who had retired from service, is impermissible. The relevant
portion of the said judgment is extracted hereunder:-
“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
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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 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 of 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 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.”
13. It could be seen that the pension has been refixed and the
difference has been paid only based on their own calculation of the
respondents by implementing G.O.(Ms)No.363, Finance Department dated
23.08.2013 and also on the authorisiation issued by the Accountant General.
While so, ultimately when the petitioner is a retired employee, the recovery
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that is sought to be made as per the impugned orders is impermissible in
view of the decision in White Washer's case.
14. In view of the above observations, this Writ Petition stands
allowed and the impugned orders dated 04.07.2014 and 11.07.2014 passed
by the second respondent for recovery are set aside. However the
respondents are at liberty to issue proper notice to the petitioner in respect of
refixation of pension and after affording an opportunity to the petitioner,
take a decision, on merits and in accordance with law.
15. There shall be no order as to costs. Consequently, connected
Miscellaneous Petitions are closed.
30.10.2024
Speaking order / Non-speaking order
Index : Yes / No
Neutral Citation : Yes / No
sri
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To
1.The District Treasury Officer,
Villupuram.
2.The Assistant Treasury Officer,
Vanur, Villupuram District.
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G.ARUL MURUGAN, J.
sri
and M.P.Nos.1 & 2 of 2014
30.10.2024
[2/2]
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