The Secretary to Government, Finance (Pension) Department and The Treasury Officer vs M. Annalakshmi

R. Subbiah, J.—This writ appeal is directed against the order, dated 09.04.2008 passed in W.P(MD) No. 3303 of 2008 whereby the learned single Judge quashed the order of the second Appellant dated 24.08.2007 directing the Respondent to deposit the excess pension payment made to her.

The Respondent is a widow of one N.S. Muthusamy, are tired Additional Superintendent of Police, who retired on 14.04.1961. After retirement, he was receiving pension, till the date of his death on 02.02.1978. Thereafter, the respondent was receiving the family pension which was revised from time to time on the basis of the recommendation of the pay commission. Lastly, she was receiving a pension of Rs. 6,125/-.

In the said situation, the District Treasury Officer, the second Appellant herein, all of a sudden reduced the pension abruptly to Rs. 1,433/-with effect from 01.09.2007. Further, the second Appellant informed the Respondent that a sum of Rs. 1,200/-per month will be deducted in 227 equal monthly installments since there was an audit objection stating that there was excess payment of pension amount. Aggrieved over the same, the Appellant has filed the writ petition. On consideration of the submissions made on either side, the learned single Judge has quashed the impugned order dated 24.08.2007 and directed the second Appellant to return the amount to the Respondent which has-been recovered from the Respondent pursuant to the order dated 24.08.2007. Hence, the present appeal.

We have heard the submissions made by the learned Counsel on either side and perused the materials available on record.

It is well settled legal position that if excess payment is made to the pensioner on account of any misrepresentation on the part of the pensioner then the excess payment made to the said pensioner could be recovered. But in the instant case, no material is available to show that there was any misrepresentation on the part of the Respondent for receiving the excess payment. The revision of family pension was made by the Appellants themselves as per G.O. Ms. No. 200, Finance (Pay Cell) Department, 18.05.1999 which was subsequently found incorrect by the audit party. Hence, for the mistake committed by the Appellant, the Respondent cannot be found fault with on any account.

The Supreme Court in the decision reported in 2009 (1) SCC 163 (Syed Abdul Qadir and Ors. v. State of Bihar and Ors. 2009 (1) SCC 163) and in paragraph-28, it is held as follows:

Undoubtedly, the excess amount that has-been paid to the Appellants-teaches 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 fid 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.

The same view was taken earlier by the Honourable Supreme Court in the decisions reported in (1995)1 SCC (supp) 18(Sahib Ram V. State of Haryana (1995)1 SCC (supp) 18) and in Babulal Jain Vs. State of M.P. and Others, and by the Division Bench of this Court in the decisions reported in 2006(3) LLN 461 (D. Palavesamuthu v. Tamil Nadu Administrative Tribunal 2006 (3) LLN 461) and (2006) 3 MLJ 695 (S.A. Kanthimathi v. Director of School Education Madras (2006) 3 MLJ 695), I have also taken similar view following the Supreme Court decisions

Though a judgment was relied upon by the Government Advocate reported in Col. (Retd.) B.J. Akkara Vs. The Govt. of India and Others, in support of his contention that if any excess payment is made, the Appellants are entitled to recover the excess payment in installments, on perusal of the said judgment, we find that the Hon''ble Supreme Court held that if error is detected within a short time of wrong payment, the same could be recovered. But in the instant case, we find that the error was found after a long period of 9 years. Under such circumstances, the judgment relied upon by the learned Government Advocate cannot be made applicable to the facts of this case. Moreover, as contended by the learned Counsel for the Respondent, the impugned order was passed without notice to the Respondent. Therefore, on that ground also, the impugned order is liable to be quashed.

Hence, we do not find any error in the order passed by the learned single Judge. In fact, the learned single Judge has given liberty to the Appellants to reduce the pension after due notice to the Respondent and after holding an enquiry. Therefore, we are not inclined to interfere with the order passed by the learned single Judge. Hence, the writ appeal is dismissed as devoid of any merit. No costs.