K.V.Arunachalam vs The Accountant-General & Ors.

Heard Mr.R.Saseetharan, learned counsel for the petitioner and Mr.V.Vijay Shankar, learned counsel appearing for the first respondent and

Mr.T.M.Pappiah, learned Special Government Pleader appearing for the third respondent.

The petitioner has approached this Court, seeking the following relief,

To issue a writ of Certiorarified Mandamus, to call for the records of the 2nd respondent issued in proceedings No. Nil dated 28.05.2009 and

quash the same and restore the amount of family pension of the petitioner to the rate at basic of Rs.3,975/- and to pay the family pension

accordingly.

The case of the petitioner is as follows:-

The petitioner''s wife was working as Tamil Pandit at Rani Meyyammai Higher Secondary School, Mandaveli, Chennai-28. She died on

22.04.2002, after retirement on 30.04.1998. Till her death, she was in receipt of pension from the Government of Tamil Nadu. After the death of

the petitioner''s wife, the petitioner was entitled to family pension and has been receiving the same every month from April 2002 onwards. The

family pension was fixed at Rs.3,975/- with allowance and the petitioner receiving the same through the second respondent Bank.

While so, by order dated 28.05.2009, the second respondent informed the petitioner that he has been paid pension incorrectly at enhanced

rate, as he was entitled to only a normal rate of pension at Rs.2,365/- from 02.04.2005 and therefore, the excess amount paid to him for the

period from 02.04.2005 to 03.04.2009 had to be recovered. The excess payment was to the tune of Rs.1, 58,090/-.

The second respondent appears to have passed the order of recovery on 28.05.2009, without prior notice to the petitioner. However, the

petitioner made an attempt to get further information as to the basis from which the excess payment is sought to be recovered and also on the basis

of which, the pension was reduced. Unfortunately, the petitioner did not get any worthwhile information, inspite of he approaching the authority

concerned in this regard. However, he was informed that the recovery order has been issued only on the basis of certain audit objections. The

petitioner was also not informed about the basis of the audit objections as well. Therefore, the petitioner is constrained to move this Court,

challenging the proceedings dated 28.05.2009 of the second respondent, refixing the pension as well as the recovery order.

Upon notice, learned counsel appearing for the first respondent, entered appearance and made his submissions. On behalf of the second

respondent Bank, though initially the learned counsel''s name was printed in the cause list, on the basis of his appearance, but, there was no

representation on behalf of the second respondent for a number of occasions, when the matter was called. Therefore, in the last occasion, the

Registry was directed to print the name of the Bank and when the matter is called today for orders, still there is no representation. Therefore, this

Court has left with no other option except to deal with the case on merits.

During the course of the arguments, the learned counsel for the petitioner has confined his arguments only on the recovery of the so called

excess payment made to the petitioner. At the outset, he would submit that admittedly there is no notice issued prior to the impugned proceedings

by the second respondent and therefore, on this ground alone, the impugned proceedings is liable to be interfered. He would further submit that the

issue of recovery from pension payable to the Government employee has been dealt with by the Hon''ble Supreme Court of India, in the case of

State of Punjab and others Vs. Rafiq Masih (White Washer) and others, reported in (2015) 4 Supreme Court Cases 334, wherein, the Hon''ble

Supreme Court of India in paragraph 18 of the judgment, has held as follows:-

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 hereinabove, 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.

The learned counsel for the petitioner would submit that the present writ petition is fully covered by the above ruling of the Hon''ble Supreme

Court of India. He would submit that no recovery could be made from the employees belonging to Class III and Class IV Service (or Group C

and Group D Service) and also such recovery cannot be made from retired employees.

In this case, as rightly contended by the learned counsel for the petitioner that no notice was issued prior to the order of recovery and refixation

is concerned. Although the learned counsel has confined his argument only in regard to the recovery portion alone, however, this Court is of the

view that even the refixation of pension without notice cannot be countenanced in law, since such action on the part of the second respondent

violates the very basic principle of natural justice. When an order is passed resulting in adverse consequences, the same cannot be passed without

due notice to the employee concerned. In this case, the refixation of pension as well as the recovery has been ordered without putting the petitioner

on notice, disclosing the basis of such action. Even otherwise, as regards the recovery is concerned, the issue is squarely covered by the ratio laid

down by the Hon''ble Supreme Court of India and therefore, such recovery cannot be effected, particularly, from the family pension payable to the

petitioner.

Therefore, this Court is of the considered view that the impugned action by the second respondent for refixation of pension as well as the

recovery, cannot stand the test of judicial scrutiny and therefore, the impugned order dated 28.05.2009, is hereby set aside. As regards the

refixation of pension is concerned, it is always open to the second respondent or any other authority concerned to issue proper notice to the

petitioner and after obtaining his explanation, any order could be passed, in accordance with law. But, as regards the recovery is concerned, since

the matter is squarely covered by the ruling of the Hon''ble Supreme Court of India, as aforementioned, the same cannot be done under any

circumstances.

In the light of the above, the writ petition is allowed. It is also made clear that any amount which is recovered by the second respondent from

the family pension payable to the petitioner, has to be refunded to the petitioner. Such refund shall be done within a period of four weeks from the

date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.