IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 18-07-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.29935 of 2006 O.A.No.4881 of 1996 K.Harihara Subramanian .. Petitioner. Versus 1.The District Collector, Tirunelveli, Tirunelveli-Kattabomman District. 2.The Assistant Treasury Officer, Sub Treasury, Cheranmahadevi, T.K.District. .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorari to call for the records relating to the impugned order of the second respondent in Rc.No.83/96 (A1), dated 2.8.96, and quash the same. For Petitioner : Mr.P.Manoj Kumar For Respondents : Mr.T.Seenivasan Additional Government Pleader O R D E R Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents. 2. The petitioner has stated that his father H.Krishnan was working as an accountant in the Panchayat Development Section at the the Collector's Office, Tirunelveli, and he had retired from service on 24.11.69. The petitioner's father was paid the pension due to him. He had died on 15.12.95. Since, his wife, the mother of the petitioner had died earlier, the pension that was being paid to the petitioner's father was stopped from 15.12.1995. While so, by an https://hcservices.ecourts.gov.in/hcservices/ order of the second respondent, dated 2.8.96, made in Rc.No.83/96(A- 1), the petitioner has been intimated that a sum of Rs.34,944/-, being the excess amount paid as pension was ordered to be recovered from the monthly pension of H.Krishnan, the father of the petitioner. Since a sum of Rs.4344/- had been recovered from the monthly pension of H.Krishnan, the petitioner has been asked to remit the balance amount, failing which appropriate action would be pursued against the petitioner. In such circumstances, the petitioner has filed an original application before the Tamilnadu Administrative Tribunal in O.A.No.4881 of 1996, which has been transferred to this Court and re- numbered as W.P.No.29935 of 2006. 3. In the reply affidavit filed on behalf of the respondents, the claims made by the petitioner have been denied. It has been stated that the Annual Audit of Sub Treasury, Cheranmahadevi, for the year 1994, was taken up by the Regional Deputy Director of Treasuries and Accounts, Madurai. During the course of the audit, some overpayments in pension were pointed out in the notes of inspection and the Deputy Director had ordered the recovery of the over paid pension from the concerned pensioners and to credit the amount to the Government account. One such case pertains to H.Krishnan, the father of the petitioner. H.Krishnan was receiving the pension at the rate of Rs.69/- per month, with effect from 25.11.69. His pension was raised based on the various Government orders and it was fixed at Rs.474/- per month, as on 1.6.88, along with the usual allowances. The arrears of pension was paid to H.Krishnan on 17.7.92. Later, based on a letter of the Office of the Accountant General, Madras, in letter No.Pen26/93-94/Vol.122/182, dated .12.93, the petitioner was paid the arrears from the date of his retirement, i.e. from 25.11.69 instead of from 1.12.91, since the Government of Tamilnadu in its order in G.O.Ms.No.511, Finance (Pen) Department, dated 26.7.93, had modified the orders made in G.O.Ms.No.911, dated 4.12.91. While refixing the pension with retrospective effect from 25.11.69, excess payments have been made to the petitioner due to certain clerical errors. Therefore, the excess amount paid to the petitioner was objected to during the Annual audit conducted in the year 1994. In such circumstances, the second respondent had issued the impugned order, dated 2.8.96, asking the petitioner to remit the amount of Rs.34,944/-, being the balance amount from H.Krishnan, the father of the petitioner. 4. The learned counsel appearing for the petitioner had submitted that the petitioner cannot be held liable for any irregularity or excess payment made in respect of the pension paid to his father. With the death of the petitioner's father, the payment of pension came to an end and the Department's right to recover any money from the pension amount had been extinguished. Since, the https://hcservices.ecourts.gov.in/hcservices/ relationship of Master and Servant between the Government and the petitioner's father, who was a Government servant, had ceased on his retirement, on 24.11.69. Further, there is no continuing cause of action in respect of such matters. It was also submitted that no show cause notice was served on the petitioner before the order of recovery of the alleged excess payment was made. The petitioner was not given an opportunity to put forth his case. Therefore, the impugned order of the second respondent, dated 2.8.96, is arbitrary, illegal and void. 5. The learned Additional Government Pleader appearing on behalf of the respondents had submitted that the petitioner was liable to remit the balance amount of Rs.34,944/-, which was the excess pension paid, to the petitioner's father, H.krishnan. Since, H.Krishnan had died on 15.12.95, the second respondent had issued the impugned order, based on the audit report of the year 1994. 6. However, the learned counsel appearing on behalf of the respondents has not been in a position to show that the second respondent had issued a show cause notice to the petitioner before passing the impugned order. Even though it has been mentioned in the impugned order, that certain reminders had been sent to the petitioner, it could not be shown that a notice had been served to the petitioner directing him to show cause as to why the excess payment made to his father, as pension, should not be recovered from the petitioner. 7. In view of the submissions made by the learned counsels appearing for the petitioner, as well as the respondents, this Court is of the considered view that the impugned order, dated 2.8.96, issued by the second respondent, cannot be sustained in the eye of law. It is not in dispute that the father of the petitioner, who was a government servant, had died on 15.12.95. Since his wife had pre- deceased him, the payment of pension had ceased on the death of the petitioner's father, H.Krishnan, on 15.12.95. Even if it is taken to be true that an excess payment had been made to the petitioner's father it cannot be recovered from the petitioner, especially, when no opportunity was provided to him by issuing a show cause notice. The impugned order passed by the second respondent, on 2.8.96, has been issued in violation of the principles of natural justice. It has not been shown by the respondents that the excess payment of pension made to the father of the petitioner was due to the mis- representation or fraud committed by the petitioner. Further, an order of interim stay of the impugned proceedings of the second respondent, granted by the Tamilnadu Admistrative Tribunal, has been in force till date. https://hcservices.ecourts.gov.in/hcservices/ 8. In such circumstances, the impugned order of the second respondent, made in Rc.No.83/96(A1), dated 2.8.96, is quashed. Accordingly, the writ petition stands allowed. No costs. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar csh To 1.The District Collector, Tirunelveli, Tirunelveli-Kattabomman District. 2.The Assistant Treasury Officer, Sub Treasury, Cheranmahadevi, T.K.District. 1 cc To The Government Pleader,High Court, Madras. SR.38697 Writ Petition No.29935 of 2006 LA (CO) SMK/07.08.08 https://hcservices.ecourts.gov.in/hcservices/