High Court · 2025

WP(MD)Nos.19681 of 2021For Petitioner (s):Ms.Shunmalar for Mr.R.IlayarajaFor Respondent(s):Mrs.S.Mahalakshmi-R1Mr.F.Deepak, SGP-RR2 and 3ORDER1.This Writ Petition has been filed, to issue a Writ of Certiorari and Mandamus to call for the records of the 3rd Respondent in Se.Mu.Na.Ka.No.K2/2021, dated 21.09.2021 and to quash the same and consequently to forbear the Respondents from recovering any amount from the Petitioner's Pension Account PPO.No.C264162/ AGR, in future.2.The facts of case, in a nutshell, led to filing of this Writ Petition, as set out in the affidavit filed in support of this Writ Petition and necessary for disposal of same, are as follows:-a)The Petitioner had joined as an Additional Agricultural Extension Officer on 17.10.1968 in the 2nd Respondent Department and he retired on 30.01.2004 as a Joint Deputy Director (Seed Inspection). The Petitioner had been paid with the pensionary benefits and at present, he is receiving the pension at the rate of Rs.66,619 /- p.m. from the Office of the 3rd Respondent, as per PPO No.C264162/AGR. While so, the 3rd Respondent had passed the 2/17 https://www.mhc.tn.gov.in/judis WP(MD)Nos.19681 of 2021impugned order, in Se.Mu.Na.Ka.No.K2/2021, dated 21.09.2021, stating that since the Petitioner was paid inadvertently with the enhanced revised pension to the tune of Rs.3,78,907/-, as per the 7th Pay Commission from 01.10.2017, which he is not entitled to, in view of the relevant Government Order, the same would be recovered from his monthly pension at the rate of Rs.15,788/- p.m. from September 2021 onwards in 24 instalments. b)The Petitioner being a retired Government Servant, he and his family are solely dependent on the pensionary benefits for their day to day needs. The Petitioner has not willfully suppressed or misrepresented any material fact for receiving the enhanced pension and therefore, the act of the 3rd Respondent in initiating recovery proceedings is completely unsustainable in law. Hence, contending that unless the impugned order of recovery is set aside, he will be put to irreparable loss and hardship and his day today life would be very much affected, since he is the sole bread-winner of the family and relying on various decisions of the Honourable Supreme Court and the High Courts, passed in similar circumstances, this Writ Petition has been filed, seeking the prayer as stated above. 3.This Court heard Ms.Shunmalar for Mr.R.Ilayaraja, the learned 3/17 https://www.mhc.tn.gov.in/judis WP(MD)Nos.19681 of 2021counsel for the Petitioner and Mrs.S.Mahalakshmi, the learned counsel for the 1st Respondent and Mr.F.Deepak, the learned Special Government Pleader for the Respondents 2 and 3.4.The learned counsel for the Petitioner has submitted that the enhanced pension amount was paid to the Petitioner only in accordance with the 7th Pay Commission's Recommendations and that the impugned order had been passed, without giving sufficient opportunity or show cause notice to the Petitioner, thereby violating the principles of natural justice and that when there was no misrepresentation or fraud on the part of the Petitioner for receiving the enhanced pension amount, recovery of the same cannot be permissible in law, that too, after a long duration of period after his retirement. The learned counsel would further submit that the pension cannot be recovered from the Pensioner, even if an excess amount has been paid by way of either mistake or wrong fixation or inadvertendly. The learned counsel would further submit that recovery cannot be made from the retired employees and hence, the impugned order is not sustainable and consequently, the Respondents may be directed to continue to pay the pension at the rate, at which the Petitioner is drawing presently, by allowing this Writ Petition. 4/17 https://www.mhc.tn.gov.in/judis WP(MD)Nos.19681 of 20215.In support of his contentions, the learned counsel for the Petitioner has relied on the following decisions:-i.2015 4 SCC 334 (State of Punjab Vs. Rafiq Masih (White Washer) and others.ii.2009 3 SCC 475 (Syed Abdul Qadir Vs. State of Bihar) iii.Judgement and order, dated 26.07.2019 made in WP(MD)No.20358 of 2014 (C.Rajeswari Vs. The Accountant General (A&E), Chennai and others) of the Madurai Bench of the Madras High Court.iv.Judgement and order, dated 21.03.2025 made in WP(MD)No.10132 of 2021 (L.Annamalai Vs. The Accountant General (A&E), Chennai and others) of the Madurai Bench of the Madras High Court.6.The learned counsel for the Respondents submit that since the Petitioner's pension was fixed inadvertently, as per the 7th Pay Commission Order in E.Pension portal, for which, the Petitioner was not eligible, the impugned order, directing the Petitioner to repay the excess payment of pension is in order and hence, this Writ Petition is not sustainable and consequently, the Respondents are entitled to recover the said excess pension amount paid from the Petitioner, as per the impugned order and the Writ Petition may be dismissed. 7.I have given my careful and anxious consideration to the contentions put forward by the learned counsel on either side and also perused the 5/17 https://www.mhc.tn.gov.in/judis WP(MD)Nos.19681 of 2021entire materials available on record. 8.On perusal of the records, it is seen that admittedly, the Petitioner had joined his service as an Additional Agricultural Extension Officer on 17.10.1968 in the 2nd Respondent Department and he retired on 30.01.2004. After his retirement, the Petitioner had been paid with the pensionary benefits and at present, he is receiving the pension at the rate of Rs.66,619/- p.m. as per PPO No.C264162/AGR. The impugned order of recovery was passed on 21.09.2021. There is also an interim order of stay of recovery alone passed by the Coordinate Bench of this Court on 01.11.2021, which is in force till date.9.It is the case of the Respondents that since the Petitioner's pension was fixed inadvertently, as per the 7th Pay Commission Order, for which, the Petitioner was not eligible, the Respondents are entitled to recover the said excess pension amount paid from the Petitioner, as per the impugned order.10.Be that as it may, firstly, it is to be seen that whether there was sufficient opportunity or show cause notice given to the Petitioner before passing the impugned order of recovery of the excess pension amount paid to him. There is no material evidence to show that the Petitioner was given sufficient opportunity or show cause notice 6/17 https://www.mhc.tn.gov.in/judis WP(MD)Nos.19681 of 2021before passing the impugned order. Thus, it is established that the Petitioner was not given sufficient opportunity or a show cause notice at all before passing the impugned order of recovery and the Respondents fail to produce any documents in this regard. Hence, the impugned order is in violation of principles of natural justice. On this ground, the impugned order is vitiated.11.Secondly, even assuming that there was sufficient opportunity or show cause notice given to the Petitioner, it is to be seen as to whether the impugned order, directing the Petitioner to repay the excess pension amount paid to him, after a long duration of time after the retirement of the Petitioner, is permissible in law or whether there is any misrepresentation or fraud on the part of the Petitioner for receiving the excess pension amount.12.In this case, admittedly, the Petitioner retired on 30.01.2004. The Petitioner had been paid with the pensionary benefits. Thereafter, the Petitioner was paid with the revised pension as per the 7th Pay Commission from 01.10.2017. At present, he is receiving the pension at the rate of Rs.66,619/- p.m. The impugned order of recovery was passed very much belatedly on 21.09.2021 after more than fifteen years after his retirement.7/17 https://www.mhc.tn.gov.in/judis WP(MD)Nos.19681 of 202113.At this juncture, in the above said facts and circumstances, it would be appropriate to refer to the decision of the Honourable Supreme Court rendered in the case of State of Punjab Vs. Rafiq Masih (White Washer) and others, reported in 2015 4 SCC 334, on the question of permissibility of the Respondents/Recovering Authorities to recover the excess payments. In the said decision, the Honourable Supreme Court had summarized a few situations of hardship that may be faced by a Government Servant/Employee on the issue of recovery and held to be impermissible in law. Among these situations, (i) recovery from the employees belonging to Class III and Class IV (Group C and Group D) Categories, (ii) recovery from the retired employees or the employees, who are due to retire within one year and (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, etc. are some of the situations, which were held to be impermissible in law in the above said decision. 14.In 2015 4 SCC 334 (State of Punjab Vs. Rafiq Masih (White Washer) and others, the Honourable Supreme Court, was pleased to observe as under:-8/17 https://www.mhc.tn.gov.in/judis WP(MD)Nos.19681 of 2021“12. 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:(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.”15.The present case is squarely covered by two of the situations summarised by the Honourable Supreme Court referred to above, namely, recovery from retired employees, or employees who are due to retire within one year, of the order of recovery and secondly, in any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh 9/17 https://www.mhc.tn.gov.in/judis WP(MD)Nos.19681 of 2021or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover, inasmuch as, in the present case, admittedly after the Petitioner's retirement from service on 30.01.2004, the impugned order of recovery was passed on 21.09.2021 more than fifteen years after the retirement of the Petitioner. In view of the law laid down by the Honourable Supreme Court as stated supra, the impugned order, contemplating recovery of the excess payment, cannot be legally sustained. 16.In 2009 3 SCC 475 (Syed Abdul Qadir Vs. State of Bihar), the Honourable Supreme Court was pleased to observe as under:-“59. Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.”10/17 https://www.mhc.tn.gov.in/judis WP(MD)Nos.19681 of 202117.In 2022 1 CTC 736 (R.Jeyaprakash Vs. Executive Officer), the Madurai Bench of the Madras High Court was pleased to observe as under:-“40.The ratio to be gleaned is that the facts and circumstances of every case have to be examined and appreciated on their own merit to discern whether the re-fixation and recovery in question was warranted or justified. Exceptional circumstances that call for complete justice must be taken note of while deciding the fate of the action initiated.41.The take-away thus, is that the duty of the Court must be to balance whether the re-fixation and recovery ordered is iniquitous or unfair on the one hand or whether the corresponding right of the employer to recover the amount is greater on the other hand, in effect, whether the recovery has 'a harsh and arbitrary effect on the employee'. In deciding so, the Court must bear in mind that the concerned employee would normally not have any vested right in the excess amount received by him. It is upon an application of those principles that the present case must be decided.”18.In the judgement and order, dated 26.07.2019 made in WP(MD)No.20358 of 2014 (C.Rajeswari Vs. The Accountant General (A&E), Chennai), the Madurai Bench of the Madras High Court was pleased to observe as under:-“3. This Court is of the opinion that the family pension cannot be recovered from the family pensioner, even if an excess amount has been paid by way of either mistake or wrong fixation. This apart, the monetary benefits cannot be recovered from the family pensioner, without providing any show cause notice or opportunity to the person affected. 11/17 https://www.mhc.tn.gov.in/judis WP(MD)Nos.19681 of 20215. The writ petitioner is a family pensioner and there was no misrepresentation or otherwise on the part of the writ petitioner, even there was no undertaking in this regard. Under these circumstances, the impugned order of recovery is untenable and the excess payment already paid to the writ petitioner cannot be recovered from the writ petitioner. This being the factum, the following orders are passed: i. The impugned order of recovery, dated 14.11.2014, passed by the second respondent, is quashed. ii. The respondents are directed to fix the correct scale of pay as applicable to the writ petitioner's husband and accordingly, pay the revised family pension and continue the pay to the writ petitioner with reference to the pension rules in force.”19.In the Judgement and order, dated 21.03.2025 made in WP(MD)No.10132 of 2021 (L.Annamalai Vs. The Accountant General (A&E), Chennai and others) of the Madurai Bench of the Madras High Court, this Court was pleased to observe as under:-“20. In the present case, admittedly, the alleged excess pension amount had been paid to the Petitioner inadvertently, for which, the Petitioner cannot be held responsible. The Petitioner had no knowledge that the amount that was being paid to him was more than what he was entitled to. It is also pertinent to note that unless it is established that the said excess payment was made due to misrepresentation of fraud on the part of the Petitioner, recovery of the same cannot be permitted. Admittedly, in the present case, it is not the case of the Respondents that there was misrepresentation or fraud on the part of the Petitioner for receiving the excess pension amount. In such view of the matter, this Court is of the view that at this stage, recovery of excess payments made from the 12/17 https://www.mhc.tn.gov.in/judis WP(MD)Nos.19681 of 2021Petitioner, when he retired from service very long back, would entail harsh consequences and would be iniquitous and arbitrary.”20.In the present case, admittedly, the alleged excess pension amount had been paid to the Petitioner inadvertently, for which, the Petitioner cannot be held responsible. The Petitioner had no knowledge that the amount that was being paid to him was more than what he was entitled to. It is also pertinent to note that unless it is established that the said excess payment was made due to misrepresentation of fraud on the part of the Petitioner, recovery of the same cannot be permitted. Admittedly, in the present case, it is not the case of the Respondents that there was misrepresentation or fraud on the part of the Petitioner for receiving the excess pension amount. The Petitioner is the only bread winner of the family. In such view of the matter, this Court is of the view that at this stage, recovery of excess payments made from the Petitioner, when he retired from service very long back, would entail harsh consequences and would be iniquitous and arbitrary. Therefore, this Court finds no reason to exercise its judicial discretion exercising judiciously so as to justify the claim of the Respondents to recover the excess pension amount paid to the Petitioner, at this long duration of period. 13/17 https://www.mhc.tn.gov.in/judis WP(MD)Nos.19681 of 202121.To sum and substance, in this case, as stated above, the Petitioner was not given a sufficient opportunity or show cause notice, before passing the impugned order. In view of the above said referred decisions of the Honourable Supreme Court and the Honourable Principal Bench and the Madurai Bench of the Madras High Court, the impugned order of recovery cannot be permissible in law, since the impugned order was passed after long duration of period after retirement of the Petitioner. It is not the case of the Respondents that the Petitioner has willfully suppressed or misrepresented any material fact for receiving the enhanced pension. Since it is stated by the Respondents that the excess pension amount was paid inadvertently to the Petitioner, the Petitioner cannot be made responsible for the same. The Petitioner being a retired Government Servant, he and his family are solely dependent on the pensionary benefits for day to day needs. Therefore, the act of the 3rd Respondent in initiating recovery proceedings is completely unsustainable in law and consequently, no recovery of the amount that has been paid in excess to the Petitioner, should be made. Therefore, there is no merits whatsoever in the claim of the Respondents to recover the excess pension amount paid to the Petitioner, at this belated stage and hence, the present Writ 14/17 https://www.mhc.tn.gov.in/judis WP(MD)Nos.19681 of 2021Petition is liable to be allowed and the impugned order of recovery is liable to be quashed.22.In the result, in the light of the observations and the discussions made above and in the light of the decisions referred to above, this Writ Petition is allowed, as prayed for. The impugned order of the 3rd Respondent in Se.Mu.Na.Ka.No.K2/2021, dated 21.09.2021, is hereby quashed. The Respondents are directed to continue to pay regularly the pension at the rate at which, the Petitioner is drawing his pension, presently and also pay the arrears of pension, if any, within a period of six weeks from the date of receipt of a certified copy of this order.23.There is no order as to costs. Consequently, the connected Writ Miscellaneous Petitions are closed. 24.07.20252/2Index:Yes.No Web:Yes.No Speaking.Non SpeakingNeutral CitationSrcm To15/17 https://www.mhc.tn.gov.in/judis WP(MD)Nos.19681 of 20211.The Accountant General (A&E), No.361, Anna SalaiTeynampet, Chennai-182.The Director of Agriculture, Chepauk, Chennai 3.The Treasury Officer, the District TreasuryThanjavur16/17 https://www.mhc.tn.gov.in/judis WP(MD)Nos.19681 of 2021SHAMIM AHMED, J.SrcmPre-Delivery Order inWP(MD)No.19681 of 20212/224.07.202517/17