Smt. Thirupurasundari vs Chief Internal Auditor and Chief Auditor of Statutory Boards, Madras and The Senior Assistant Director, Khadi, Board Audit, Kuralagam, Madras

A. Kulasekaran, J.—This writ petition has been filed seeking for a Writ of Certiorari to call for the records of the first respondent in his proceedings No. Na.Ka. 18308/E1/95 dated 06-02-1996 ordering recovery of pension paid to the petitioner between 12-11-1981 to 31-10-1995 in monthly instalments and to quash the same.

The petitioner''s husband Jaganathan was employed in Local Fund Audit Office, Madras as Junior Assistant. He died in harness on 11-11-1981 and the petitioner was employed on compassionate grounds in the local fund audit office, Madras as Office Assistant with effect from 19-01-1983, later she was transferred to Khadi Board. The petitioner and her children were paid monthly family pension at Rs.950/- from 12-11-1981 and the petitioner was receiving the same on behalf of her children till 31-10-1995. The first respondent by letter dated 07-11-1995 calling upon the petitioner to submit her explanation as to why the family pension should not be stopped in view of the fact that the petitioner has married one Kasi on 14-05-1987 and suppressing the said marriage and receiving family pension which amounts to violative of Rule 49 (6) (1) of the Tamil Nadu Pension Rules. The petitioner has admitted the marriage, however she has stated in her explanation dated 08-12-1995 to the first respondent that she was not aware of the fact that the said Kasi was married person and living with his spouse as such the marriage between her and the said Kasi is null and void and requested the first respondent not to stop the family pension. The first respondent by his order dated 20-12-1995 and issued charge memo stating that she is disqualified to hold the post as she has violated the Rules of the Tamil Nadu Government Servant Rules. On receipt of the charge memo, the petitioner has submitted her detailed explanation dated 21-01-1996 apprising the circumstances which forced her to marry the said Kasi, non-disclosure of marriage was not intentional and she was abandoned by him. Not satisfied with the explanation, the first respondent by the impugned order dated 06-02-1996 directed the 2nd respondent to recover a sum of Rs.65,473/- being the pension paid to the petitioner from her salary in 131 equal monthly instalments at the rate of Rs.500/- per month and the last one was Rs.473/-. As against the said order, the petitioner has come forward with this writ petition.

The learned counsel appearing for the petitioner argued that the marriage between the petitioner and Kasi was null and void as such it should be presumed as invalid, that the first respondent has no authority to recover the pension already paid to the petitioner since the Rules does not provide for recovery. Even assuming that the 2nd marriage took place, the first respondent has no jurisdiction to recover the entire pension as there were two unmarried daughters below 24 years. Even assuming without admitting that the remarriage took place on 14-05-1987, the recovery could have been made only from 14-05-1987 and not prior to it.

The learned Government Advocate appearing for the respondents argued that the re-marriage was admitted by the petitioner, however she has not attempted to cancel the marriage and obtain a certificate from the authority, that the petitioner''s remarriage is violative of Rule 19 (1) of Tamil Nadu Government Servants Conduct Rules. The charge levelled against the petitioner was that she has suppressed the re-marriage to the department as such the order of recovery of the amount paid to her from 14-01-1987 to 31-10-1995 amounting to Rs.65,473/- is perfectly valid. The averments that the amount of Rs.65,473/- was calculated for the period from 11-1981 to 30-10-1995 is incorrect. The learned Government Advocate further argued that the recovery was made on the following grounds;-

i) The petitioner and Kasi, as husband and wife printed the wedding invitation for the marriage of the petitioner''s daughter namely Kamala wherein the said Kasi was shown as father of Kamala.

ii) The petitioner has lost her right of family pension from the date of re-marriage

iii) Drawal of pension even after remarriage is violative of the Tamil Nadu Government Servant Conduct Rules.

iv) The Pension Pay Officer has directed to take action against the petitioner and report to them. On the basis of the orders received from the pension Pay officer, Madras-6, formal orders were issued by the 1st respondent to the 2nd respondent .

The learned counsel further argued that the averments that on the recommendations of the first respondent the 2nd respondent initiated recovery proceedings is factually incorrect. As per Tamil Nadu Pension Rules, the power of sanctioning or stopping family pension is vested with the pension pay officer and it is obligatory on the part of the Head of Department to implement such orders. The allegation that principles of natural justice was not followed in this case is incorrect, as the impugned order was passed after giving notice to the petitioner. So long as the marriage between the Petitioner and the said Kasi subsists, the defence that the said marriage is null and void is untenable. The learned counsel also submitted that mentioning all the above facts, a counter affidavit has been filed by the first respondent as early as on 30-11-1996 and additional counter affidavit has been filed by the 2nd respondent as early as on 20-03-1997, and copies were served on the counsel for the petitioner.

The defence of the petitioner is that she was under the bonafide impression that the family pension is being received on behalf of her unmarried daughters is untenable. The petitioner has not assigned any valid reason for not informing the remarriage to the head of Department. As rightly pointed out by the Govt., Advocate the petitioner has not taken any steps to cancel the marriage with Kasi. Admittedly, the petitioner''s unmarried daughters have not filed any separate application as per the Rules for family pension. I do not find any infirmity in the impugned order passed by the 2nd respondent as the recovery was made on the recommendations by the Pension Pay Officer, Pension Pay Office, Madras-6 which is mentioned in reference 1 of the impugned order itself.

Hence, this writ petition is devoid of merits and is liable to be dismissed and accordingly dismissed. Consequently, connected WMP No. 3750 of 1996 is closed. No costs. However, it is open to the petitioner to file a separate application for sanction of family pension to her unmarried daughters and it is for the authorities concerned to decide the same on merits and as per law.