1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04.07.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P(MD)No.7296 of 2011 and M.P.(MD)Nos.1 and 2 of 2011 T.Josephine Latha ... Petitioner Vs. 1. The Superintendent of Police, Tirunelveli District, Tirunelveli. 2. The Inspector of Police, Armed Force, Palayamkottai, Tirunelveli District. ... Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari, to call for the records in connection with the impugned order passed by the first respondent in Na.Ka.No.P1/35537/10 dated 03.09.2010 and the quash the same. For Petitioner : Mr.S.Bharathy Kannan For Respondents : Mr.T.S.Mohamed Mohideen Additional Government Pleader. O R D E R This Writ Petition has been filed by the petitioner for a Certiorari, to call for the records in connection with the impugned order passed by the first respondent in Na.Ka.No.P1/35537/10, dated 03.09.2010 and the quash the same. 2. Heard the learned Counsel for the petitioner, the learned Additional Government Pleader for the respondents and perused the materials available on record. 3. Challenge in this writ petition is to the order, dated 03.09.2010, of the Superintendent of Police, Tirunelveli District, Tirunelveli, directing the recovery of a sum of Rs.32,167/- from the legal representatives of Late A.Thanislas, who died in a road accident on 02.09.2004, when he was working as Special Sub Inspector of Police in the office of the first respondent. It is the case of the petitioner that her mother also died on 07.04.2008. Pensionary benefits as detailed hereunder were disbursed: (i) Death cum Retirement Gratuity (DCRG) - Rs. 3,25,319/- (ii)Family Benefit Fund (FBF) - Rs. 1,00,000/- (iii)Chief Ministers Relief Fund - Rs. 1,00,000/- (iv) General Provident Fund(GPF) - Rs. 97,962/- (v) Special Provident Fund (SPF-I) - Rs. 11,456/- https://hcservices.ecourts.gov.in/hcservices/ 2 (vi) Special Provident Fund (SPF-II) - Rs. 2,973/- (vii)Leave Salary (TLS) - Rs. 66,868/- -------------- Rs. 7,04,578/- -------------- 4. It is the further case of the petitioner that without giving an opportunity and after lapse of more than ten years, recovery is sought to be made. According to her, the fixation of pay scale to her father was not made on the representation of her father. Therefore, it is not open to the first respondent to issue the impugned order of recovery after six years of disbursement of the retirement benefits. 5. On the aforesaid pleadings, Mr.S.Bharathy Kannan, learned Counsel appearing for the petitioner prayed that the impugned order has to be set aside and in support of his contentions, he also placed reliance on the decisions of the Supreme Court in, 1. Sahib Ram Vs. State of Haryana and Others reported in 1995 Supp(1) SCC 18; 2. P.H.Reddy and Others Vs. N.T.R.D. and Others reported in JT 2002(2) SC 483; and 3. D.Palavesamuthu Vs. Tamil Nadu Administrative Tribunal, represented by its Registrar, Chennai and Others reported in 2006(1) MLJ 143. 6. Considering the relief sought for in this writ petition, Mr.T.S.Mohamed Mohideen, Additional Government Pleader was put on notice. Going through the impugned order and the supporting affidavit, the learned Additional Government Pleader fairly submitted that the impugned order has been issued without giving any show cause notice. 7. Inasmuch as the Apex Court in catena of decisions has held that recovery after retirement and after long lapse of time should not be made from the retired Government servant, this Court is inclined to pass orders on the merits of the case. 8. Reading of impugned order shows that consequent to the proceedings of the Superintendent of Police, Tuticorin in R.C.No.D5/45649/ dated 20.05.2010, 10.06.2010 and 14.07.2010 recovery of the sum of Rs.32,167/- is sought to be made from the petitioner, daughter of the deceased Government servant. As rightly contended by the learned Counsel for the writ petitioner, the impugned order does not reflect adherence to the principles of natural justice. 9. The Supreme Court in Sahib Ram Vs. State of Haryana and Others reported in 1995 Supp(1) SCC 18 held that, excess payment made due to wrong construction of relevant order by the authority concerned, without any misrepresentation by the employee, recovery should not be made. In P.H.Reddy and Others Vs. N.T.R.D. and Others reported in JT 2002(2) SC 483, the Apex Court while reiterating the view that recovery should not made, even if there is an erroneous fixation of pay, held that the competent authority can refix the pay scale. In D.Palavesamuthu Vs. Tamil Nadu Administrative Tribunal, represented by its Registrar, Chennai and Others reported in 2006(1) MLJ 143, a Division Bench of this Court held that, even if it is accepted for argument sake, that the salary of the petitioner is https://hcservices.ecourts.gov.in/hcservices/ 3 fixed in a wrong scale of pay, it is a fault committed by the department and the officers, for which the petitioner should not be penalised after a lapse of number of years that too after retirement of the petitioner. 10. In yet another decision of the Supreme Court in Syed Abdul Qadir and Ors. v. State of Bihar and Ors. reported 2009 (1) SCC 163, in paragraph-28, it is held as follows: "28. 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 bonafide 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." 11. In view of the manifest illegality in the impugned order, wherein the violation of principles of natural justice is explicit and considering the fact that recovery has been ordered after a lapse of ten years from the date of fixation of pay scale and after the demise of the Government servant, this Court is of the opinion that the legal representative should not be penalised, even assuming that there was any error in fixation of pay scale. The decisions cited supra would squarely apply to the facts of this case. 12. For the aforesaid reasons, the impugned order is set aside. The writ petition stands allowed. No costs. Consequently, the connected Miscellaneous Petitions are closed. SD/- Assistant Registrar (Crl.side) /True copy/ Sub Assistant Registrar(C.S) To 1. The Superintendent of Police, Tirunelveli District, Tirunelveli. 2. The Inspector of Police, Armed Force, Palayamkottai, Tirunelveli District. +1. CC to the Special Government Pleader, Advocate, SR.No. 21640 ssl/RR W.P(MD)No.7296 of 2011 and M.P.(MD)Nos.1 and 2 of 2011 04.07.2011 TR : 13.07.2011 : 3P/4C https://hcservices.ecourts.gov.in/hcservices/