1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/08/2011 C O R A M THE HONOURABLE Mr.JUSTICE S.MANIKUMAR Writ Petition (MD)No.8774 of 2011 N.Rajamani W/o.Late V.Veerasamy Ramunni Nagar,Kallikudi Road, T.Kallupatti,Peraiyur Taluk, Madurai District. ... Petitioner Vs 1.The Accountant General (A&E) Pension Chennai – 18. 2.The Treasury Officer, Head Quarters,Madurai Collector Office, Madurai. 3.The Sub-Treasury Office Peraiyuir Taluk,Madurai District. ... Respondents Prayer : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus to call for the records of the third respondent dated 25.10.2010 in R.C.No.1044, quash the same is arbitrary, ultravires and direct the respondents to repay the deducted amount to the petitioner. For petitioner ...Mr.R.G.Shankar Ganesh For respondents ...Mr.T.S.Mohammed Mohideen Addl. Government Pleader ORDER Heard Mr.T.S.Mohammed Mohideen, Additional Government Pleader, who takes notice for the respondents. By consent of both sides, this writ petition is taken up for final disposal. 2. Pleadings disclose that the petitioner joined the educational department as a Headmistress on 17.08.1963 and on attaining the age of superannuation on 31.10.2001, retired from service. From 01.11.2001, the petitioner has been receiving pension. It is her further case that she has been receiving pension at Rs.5,238/- as pension and subsequently it was revised to Rs.20,307/-. The pension amount had been periodically credited to her account in Madurai District Co-operative Bank, T.Kallupatti. While that be so, without any notice or opportunity, the Assistant Treasury Officer, Peraiyur, has issued a memorandum, dated 25.10.2010, stating that during the course of the annual inspection of the Sub Treasury, Peraiyur, it was pointed out that pension has been erroneously paid and that there was an excess payment of Rs.1,07,274/-. The excess payment has been directed to be recovered at Rs.4,500/- per month from 10/2009 onwards. https://hcservices.ecourts.gov.in/hcservices/ 2 3. It is well settled that the order of recovery involves civil consequences. The Government servant/employee ought to have been given a reasonable opportunity to put forth his case before a recovery order is passed. Per se, the impugned order is violative of principles of natural justice and no misrepresentation of fraud has been attributed on the part of the petitioner, while fixing the pension. 4. 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 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. 5. 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." 6. Following the above decisions, this Court is inclined to set aside the impugned memorandum. Any amount already been recovered, is directed to be refunded to the writ petitioner within a period of three months from the date of receipt of a copy of this order. Insofar as the fixation of pension in future is concerned, liberty is given to the https://hcservices.ecourts.gov.in/hcservices/ 3 respondents to issue notice to the writ petitioner and after receipt of the objections/explanations, appropriate pension/pay may be fixed. With the above directions, this writ petition is disposed of. No costs. Sd/- Assistant Registrar(RTI) /TRUE COPY/ Sub Assistant Registrar To 1.The Accountant General (A&E) Pension Chennai – 18. 2.The Treasury Officer, Head Quarters, Madurai Collector Office, Madurai. 3.The Sub-Treasury Office Peraiyuir Taluk Madurai District. +1cc to The Special Govt.Pleader SR.No.26567 Writ Petition No.8774 of 2011 RR PA/22.08.2011/3P/5C https://hcservices.ecourts.gov.in/hcservices/