IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.01.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.11059/2008 K.Ramanathan ... Petitioner -vs- 1.The Accountant General Accountant General Office, Teynampet, Chennai – 600 018. 2.The Superintendent of Police Thanjavur, Thanjavur District. 3.The Assistant Treasury Officer, Papanasam, Thanjavur District. ... Respondents Prayer : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Declaration to declare that the reduction of Pensionary benefits of the Petitioner from 08.01.1982 to 01.01.2001 reducing the Pension from Rs.5,400/- to 5,100/- is null and void and consequentially directing the first respondent to refund the attached amount of Rs.74,080/- from commutation value pension and Rs.7,052/- from DCRG with 18% of interest from 28.02.2001 i.e. the date of retirement. For Petitioner :M/s.A.R.Nixon For Respondents :Mr.P.Subramani Addl Govt. pleader O R D E R The prayer in the writ petition is for a writ of declaration to declare that the reduction of Pensionary benefits of the Petitioner for the period from 08.01.1982 to 01.01.2001 from Rs.5,400/- to 5,100/- is null and void and for a consequential direction to the first respondent to refund the attached amount of Rs.74,080/- from the commutation value of the pension and Rs.7,052/- from DCRG with interest. 2. The petitioner retired as a head constable on 28.02.2001 and stated to have rendered an unblemished service of 39 years. On attaining age of superannuation, the pension proposals of the https://hcservices.ecourts.gov.in/hcservices/ petitioner was sent by the second respondent to the first respondent commuting the Pensionary benefits and enhancing the rate of Provident Fund and other amount payable. The commutation was made based on the last pay drawn by the petitioner. This proposal was sent by reducing the pension in the basic scale of Rs.2,775/- and ordered that extra pay and allowances may be recovered. Thereafter, without affording any opportunity to the petitioner, the petitioner's salary was revised from 1982 till 01.01.2001 and the second respondent recommended for recovery. The petitioner submitted a representation pointing out the illegality, which was not considered and the rejected, which was recommended was implemented and the petitioner's Pensionary benefits were revised for a period of 20 years and recovery was also effected. This action is impugned in the present writ petition by the petitioner, contending that the impugned action is illegal, since rejection of pension without notice and recovery without affording an opportunity that to by revising the pay for a period of 20 years is wholly unreasonable and arbitrary. It is further submitted that such recovery cannot be effected more particularly, since the petitioner has not made any false statement or misrepresented his claim. The learned counsel appearing for the petitioner also placed reliance on the decision of this Court in W.P.No.9207/07 dated 06.12.2008. 3. The learned Additional Government Pleader appearing for the respondents, by relying upon the counter affidavit would submit that the petitioner was appointed as a police constable in the Tamil Nadu Special Police, the then Special Armed Force on 28.11.1962, promoted as Naik on 13.09.1974 and as Havildar on 24.08.1978 and his pay was fixed on every promotion and he was given an option to go to District Police as Gr. II Police. That, he was transferred to District Police, Nagapattinam District on 08.01.1982 as Gr. II Police, but he was allowed to draw the same pay, which was received by him, while serving in the Tamil Nadu Special Police as Havildar, without regularizing his pay as Gr. II PC. 4. Therefore, as per instructions of the Accountant General his pay was refixed by proceedings dated 22.02.2002 and consequently the terminal benefits was also revised. As a consequence of the revision of Pensionary benefits, the excess payment of pay and allowances to the tune of Rs.74,008/- from the date of the petitioner joining the District Police from Tamil Nadu Special Police, till the date of his retirement was recovered. Therefore, it is submitted that there is no need to issue a show cause notice to revise his pay and make recovery of the over drawn amount. 5. Having considered the submissions on either side, two issues which arises for consideration in the present case is that whether the respondents are entitled to revise the petitioner's pay after a period of nearly 20 years and as to whether as a consequence of the revision of petitioner's terminal benefits whether recovery could be https://hcservices.ecourts.gov.in/hcservices/ done. If the answer to the first question is in the affirmative, whether still the department could effect recovery in the absence of any allegation of misrepresentation or fraud. 6. On the first question regarding the retrospective revision of pay and consequential revision of terminal benefits, the reasons assigned by the respondents in the counter affidavit is that the petitioner's pay was not regularised as Gr. II Police constable, after the petitioner opted to go to the District Police as Gr. II PC from the Tamil Nadu Special Police. This issue is no longer in controversy in view of the decision of the Hon'ble Division Bench of this Court in W.P.No.43119/2006 dated 16.11.2006 followed in W.P.Nos.23974 to 23979 etc., batch of case dated 19.06.2009. The Hon'ble Division Bench was considering the validity of an order passed by the Tribunal, which set aside orders of recovery passed by Unit Officers based on the objections raised by the Accountant General that pay protection cannot be granted for such of those persons, who were posted to Armed Reserve on their own request. The dispute arose, since the Government rejected the proposal of the Director General of Police, by letter dated 07.06.1994, stating if the police personnel belonging to the Tamil Nadu Special Police Battalion and those belonging to the Districts are considered different units and promotion from the lower category to higher one is made from among the respective unit, the pay of the Havildars, Naiks and Police Constables who were transferred as Grade II Police Constables on their own willingness to the Districts from the Battalion has to be fixed at the stage in the scale of pay applicable to Grade II Police Constables in the Districts, by notionally arriving at the pay which they would have drawn in the post of Grade II Police Constable in the Battalion on the date of their appointment in the District, but for their promotion as Naiks and Havildars. As the consequence of such rejection the Director General of Police by order dated 07.11.1997, issued instructions to revise the pay of those transferred. These orders of recovery were impugned before the Tribunal. The Tribunal set aside the orders of recovery and the same came to be confirmed by the Division Bench of this Court in W.P.No.43119/2006 dated 16.11.2006. Subsequently, the Government by G.O.Ms.No.637, Home Department dated 03.08.2009 implemented the Judgment of the Hon'ble Division Bench of this Court and to be directed the Director General of Police accordingly to pass appropriate orders. Therefore, in view of the factual partition it has to be held that the action of the respondents in revising the petitioner's pay retrospective and revising his terminal benefits is illegal. 7. On the second issue as to whether any recovery could be effected, when there is no misrepresentation the Hon'ble Supreme Court in the case of Syed Abdul Qadir and Another Vs. State of Bihar and Others [(2009) 3 SCC 475], held as follows: https://hcservices.ecourts.gov.in/hcservices/ "59. Undoubtedly, the excess amount that has been paid to the appellant 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 appellant 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 appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." 8. This Court (Justice N.Paul Vasanthakumar) in W.P.No.9207/07 dated 16.12.2008 was also considering an identical issue as to whether recovery could be effected from the Pension, if it is found subsequently that the fixation was wrongly done. This Court in the said Judgment held as follows:- "6. In the light of above submissions and following the decisions of the Supreme Court reported in (1995) 1 SCC (Supp) 18 (Sahib Ram V. State of Haryana) and (2007) 6 SCC 180 (Babulal Jain V. State of Madhya Pradesh) and the decisions of the Division Bench of this Court reported in 2006 (3) LLN 461 (D. Palavesamuthu V. Tamil Nadu Administrative Tribunal) and (2006) 3 MLJ 1025 (P.Arumugam V. Registrar, Tamil University) and the decision of mine reported in (2006) 1 MLJ 695 (S.A.Kanthimathi V. Director of School Education, Madras), I hold that the impugned order of recovery cannot be sustained. The amount withheld for non collection of time barred arrears of tax not collected by the petitioner is also unsustainable as per the Judgment of this Court reported in 1988 WLR 38 (V.Nagarajan V. The Commissioner, Salem Municipality, Salem), 2006 WLR 616 (N.Mani V. The Commissioner, Villupuram Municipality, Villupuram) and Judgment of the Division Bench in W.P.No.49053 of 2006 dated 25.01.2007. 9. Though in the instant case, it has already been held that the petitioner's pay cannot be refixed retrospectively, yet even if it had been done so, no recovery could be effected, since admittedly there is no allegation of any misrepresentation or fraud. https://hcservices.ecourts.gov.in/hcservices/ 10. For all the above reasons, the petitioner to be entitled to succeed and the writ petition is allowed as prayed for and the respondents are directed to revise the petitioner's Pension at the rate of Rs.5,400/- as originally fixed and consequently revise the petitioner's pension and recredit the amounts which were recovered from the petitioner's terminal benefits. This direction shall be complied with by the respondents within a period of eight weeks from the date of receipt of a copy of this order. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar pbn To 1.The Accountant General Accountant General Office, Teynampet, Chennai – 600 018. 2.The Superintendent of Police Thanjavur, Thanjavur District. 3.The Assistant Treasury Officer, Papanasam, Thanjavur District. 1 cc to Mr.A.R.Nixon, Advocate, Sr.No.2255 1 cc to Government Pleader, Sr.No.2682 Order in W.P.No.11059/2008 RSM {CO} TP/27.1.2010. https://hcservices.ecourts.gov.in/hcservices/