S.Alagu v. The District Treasury Officer & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:10.09.2009CORAM:THE HON'BLE MR.JUSTICE D.HARIPARANTHAMANW.P.No.8364 of 2007S.Alagu... Petitioner Vs.1. The District Treasury Officer Madurai – 22. The Sub-Treasury Officer Vadipatti Taluk Madurai district... RespondentsPRAYER: This Writ Petition came to be numbered under Article 226 ofthe Constitution of India for issuance of Writ of Mandamus by wayof transfer of O.A.No.1055 of 2002, to direct the respondents torelease the monthly pension at the rate Rs.3149/- for the month ofDecember 2001 and onwards.For Petitioner:Dr.S.PadmaFor Respondents :Mrs.C.K.Vishnu PriyaAdditional Government Pleader- - -O R D E RThe Original Application in O.A.No.1055 of 2002 beforethe Tamil Nadu Administrative Tribunal (hereinafter referred to as"the Tribunal") is now Writ Petition in W.P.No.8364 of 2007 beforethis Court.2. Heard Dr.S.Padma, learned Counsel for the petitionerand Mrs.C.K.Vishnu Priya, learned Additional Government Pleader forthe respondents.3. The petitioner was employed as Secondary Grade Teacherin Panchayat Union Primary School, Deveseri, Madurai District, whenshe was retired on reaching the age of superannuation on31.08.1997. Since she was retired in the middle of the academicyear, she was re-employed until the end of the academic year. Henceshe was re-employed in the service from 01.09.1997 to 31.05.1998.She was paid pension from the date of retirement. Later, thepension was revised with effect from 01.09.1997, as she was retiredon 31.08.1997.4. The Regional Joint Director of Treasuries andAccounts, Madurai in his notes of inspection of the Sub-Treasuryfor the year 2001, pointed out that as per the Government letterNo.39187/Fin/PC/2000-1 dated 22.03.2001, the increase in pension by https://hcservices.ecourts.gov.in/hcservices/ way of revision for the period 01.01.1996 to 31.03.1998 would notbe allowed for the re-employment period and the revised pensionwould take effect only on expiry of re-employment. The RegionalJoint Director instructed the Sub-Treasury Officers to calculatethe excess amount paid to teachers during the period of re-employment between 01.01.1996 to 31.03.1998 towards the payment ofrevised pension and directed to recover the excess payment from theDearness Allowance of pensioners, in instalments. 5.But the inspection made by the Joint Director and hisnotes of inspection and also his instructions to the subordinatesto recover the excess amount paid i.e., the difference between therevised pension and earlier pension for the re-employment periodthat fell between the period 01.01.1996 to 31.03.1998, were notmade known to the concerned teachers, including the petitioner.Further, no written order regarding the recovery to be made fromthe pension was given to teachers concerned, including thepetitioner.6. In these circumstances, when pension for the month ofDecember 2001 was paid, in the first week of 2002, a sum of Rs.1000was deducted from the pension amount towards first instalment. Thepetitioner came to know only after the receipt of reduced pension,that instructions were issued for recovery, without any writtenorder to petitioner. Hence the petitioner filed O.A.No.1055 of 2002(W.P.No.8364 of 2007) praying for a direction to respondents to paythe pension from December 2001 as paid in earlier months, withoutany recovery.7. Heard Dr.S.Padma, learned Counsel for the petitionerand Mrs.C.K.Vishnu Priya, learned Additional Government Pleader forthe respondents.8. The learned Government Advocate submits that thepetitioner is not entitled to revised pension for the period of herre-employment between 01.09.1997 to 31.05.1998 as per the letter ofthe Government of Tamil Nadu in Government letterNo.39187/Fin/PC/2000-1 dated 22.03.2001 and that therefore theexcess amount paid was sought to be recovered correctly.9. On the other hand, the learned counsel for thepetitioner submits that the revision in the pension was paid by therespondents on their own and it was neither due to any fraudulentact on the part of the petitioner nor it was due to anymisrepresentation, on the part of the petitioner; originally, thepetitioner was paid pension from the date of re-employment and itwas subsequently revised. Hence, the petitioner was paid revisedpension and the same was sought to be recovered after about fiveyears without notice and without even any written order. Thelearned counsel contends that the action of the respondents ineffecting recovery from pension without even any written order ishighly arbitrary and violative of Articles 14 and 21 of theConstitution of India.10. I have considered the submissions made by the learnedcounsel on either side. Admittedly, the recovery is sought to be https://hcservices.ecourts.gov.in/hcservices/ made without any written order. The petitioner was not put onnotice and no details were furnished to the petitioner as to whythere was recovery from the pension and as to the quantum of theamount that would be recovered. No written order was passed and noreason was given for effecting recovery from pension. Hence, it isclear that the respondents acted arbitrarily and in violation ofthe principles of natural justice. Even the minimum requirements ofprinciples of natural justice was not observed, while taking anaverse decision to effect recovery on the pension.11. Furthermore, the entitlement to pension from the dateof retirement is not disputed. The respondents stated that revisionof pension cannot be given for the re-employment period, when there-employment period fell between 01.01.1996 and 31.03.1998. It isstated by the respondents that the petitioner was wrongly given therevision in pension for her re-employment period, necessitating therecovery to be made, so as to rectify the mistake.12. From the facts, it is very clear that the revision inpension paid by the respondents was on their own volition and thesame was not made pursuant to any fraudulent act or not by due toany misrepresentation on the side of petitioner, as correctlycontended by the learned counsel for the petitioner. In thesecircumstances, if any amount was paid by mistake by the Department,the petitioner cannot be made to suffer for such a mistakeparticularly when those mistakes occurred at a distant point oftime and also particularly when the petitioner is a pensioner. 13. The Hon'ble Apex Court has categorically held invarious decisions that if any excess payment was made by theDepartment to an employee, not due to any misrepresentation fromhim, the Department cannot seek to recover the excess payment,later. After referring to the earlier decisions in 1995 Supp (1)SCC 18 : 1995 SCC (L&S) 248 Sahip Ram v. State of Haryana, 2000(10) SCC 99 : 2000 SCC (L&S) 394 Bihar SEB v. Bijay Bhadur, 2002(3) SCC 302 State of Karnataka v. Mangalore University Non –Teaching Employees Association, the Hon'ble Apex Court, held in thedecision reported in 2006 (11) SCC 492 (Purushottam Lal Das v.State of Bihar) that the Department cannot resort to recovery ofexcess amount if the said excess amount was paid not due to anymisrepresentation on the part of the concerned employee. Paragraph5 of the judgment reported in 2006 (11) SCC 492 (referred to supra)is extracted hereunder in this regard:-"5. Admittedly the Appellant does not possess therequired educational qualifications. Under thecircumstances the appellant would not be entitled to therelaxation. The Principal erred in granting him therelaxation. Since the date of relaxation the appellanthad been paid his salary on the revised scale. However,it is not on account of any misrepresentation made bythe appellant that the benefit of the higher pay scalewas given to him but by wrong construction made by thePrincipal for which the appellant cannot be held to beat fault. Under the circumstances the amount paid tilldate may not be recovered from the appellant. The https://hcservices.ecourts.gov.in/hcservices/ principle of equal pay for equal work would not apply tothe scales prescribed by the University GrantsCommission. The appeal is allowed partly without anyorder as to costs."14. A Division Bench of this Court in the case ofPalavesamuthu, D. v. Tamil Nadu Administrative Tribunal reported in(2006) 1 M.L.J. 143 has followed the decision of the Apex Court inSahib Ram case, referred to above, and in paragraph 6, it has beenlaid down as under:-"We are of the view that the course and methodadopted by the Tribunal cannot be appreciated in thecase of the petitioner. Even if it is accepted for theargument sake that salary of the petitioner is fixed ina wrong scale of pay, it is the fault committed by theDepartment and their Officers, for which the petitionershould not be penalised after a lapse of number of yearsthat too after retirement of the petitioner."15. In view of the categorical pronouncement of thedecisions of the Hon'ble Apex Court and this court, referred toabove, the writ petition is entitled to succeed and accordingly adirection is issued to the respondents not to recover from thepension payable to the petitioner towards the excess amount paidpursuant to the revision in pension for the re-employment period ofthe petitioner. 16. With the aforesaid direction, the writ petition isdisposed of. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrnsTo1. The District Treasury Officer Madurai – 22. The Sub-Treasury Officer Vadipatti Taluk Madurai districtW.P.No.8364 of 2007MS(CO)SRA(29/9/2009)