Allowed

Kuppauru, v. the District Collector

Madras HC19 Aug 2013WP(MD)/9504/2011

Case brief

AI extract

What is this about?

A writ petition challenging the deduction of Rs.16,000/- from the petitioner's pension due to alleged excess payment. The High Court allowed the petition, quashing the impugned order and directing refund based on Supreme Court precedents that excess payments without fraud cannot be recovered and principles of natural justice.

What did the court decide?

Impugned order of June 10, 2011 quashed; respondents directed to refund Rs.16,000/- within four weeks.

Kuppauru, Vs the District Collector — Pension and Retirement Benefits | Madras HC (2013)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19.08.2013

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CORAM

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THE HONOURABLE MR.JUSTICE S.TAMILVANAN

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W.P.(MD)No.9504 of 2011 and M.P (MD).No.2 of 2011

Kuppauru

... Petitioner

Vs.

The District Collector Virudhunagar District, Virudhunagar.

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The Assistant Treasury Officer Sub-Treasury Office, Arupukottai, Virudhunagar District. ... Respondents

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Writ petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus for the relief sought for in the writ petition.

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For Petitioner ... Mr.G.Marimuthu For Respondents ... Mr. V.Muruganandham Additional Government Pleader

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ORDER

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Heard the learned counsel appearing for the petitioner as well as the learned Government Advocate appearing for the respondents.

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This writ petition has been filed under Article 226 of the Constitution of India, seeking an order in the nature of writ of certiorarified mandamus or direction to call for the records of the second respondent in his proceeding in Ou.Mu.1929/2011/A, dated 10.08.2011 and quash the same as illegal and violation of principles of natural justice and direct the second respondent to repay a sum of Rs.16,000/- within the stipulated time.

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It is not in dispute that the petitioner is a Graduate Teacher appointed on 29.10.1963 in the Government Higher Secondary School, Thirupachethi, Sivagangai District and he was promoted on 31.08.1987 to the post of Headmaster of the Government Higher Secondary School, Karuvepilaikurichi, Virudhachalam Education District. He attained superannuation on 30.06.1992, while he was https://hcservices.ecourts.gov.in/hcservices/ working as Headmaster in the Government Higher Secondary School, Pallam, Madurai District. After his retirement he received pension

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from the office of the second respondent, for which, pension number given is PPO.A.842138. In the month of August 2008, the Government had revised the pension amount to the petitioner by way of G.O.Ms.No.235 and the petitioner received the revised pension amount. In the month of June 2011, the second respondent deducted a sum of Rs.8,000/- from the pension amount payable to the petitioner, totaling to a sum of Rs.16,000/- on the ground that an excess amount was paid to the petitioner.

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Learned counsel appearing for the petitioner submits that though there was intimation, no show-cause notice was issued by the respondents on the petitioner, asking as to why his pension amount could not be deducted, on the ground of excess payment. Without providing reasonable opportunity and following principles of natural justice, the second respondent, passed the impugned order, which is not legally sustainable.

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The second respondent sent a letter, dated 10.08.2011 in O.Mu.No.1929/2011/A stating that the petitioner was receiving pension at Rs.4,259/- p.m, prior to the implementation of G.O.Ms.No.235 from 8/2009, as per the said G.O.Ms.No.235, revised pension was paid to him and the same could have been fixed at Rs.9,627/- as per the said G.O, however, it was fixed at Rs.17,266/- and accordingly, for 8,9 and 10/2009, an excess amount of Rs.38,804/- was paid. Hence, as per the impugned order, dated 10.08.2011, it was ordered to deduct Rs.8,000/- per month from 06/2011 to 09/2011 and the balance amount of Rs.6,804/- was directed to be deducted in 10/2011 and further, stated that a total sum of Rs.16,000/- was deducted till the date of the said letter, towards the recovery of the excess amount of pension paid to the petitioner herein.

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Mr.G.Marimuthu, learned counsel appearing for the

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petitioner submitted that the respondents are not empowered to deduct the alleged excess amount paid to the petitioner, in view of the decisions rendered by the Hon'ble Supreme Court :

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Purshottam Lal Das vs. State of Bihar, (2006) 11 SCC 492

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Bihar State Electricity Board vs. Bijay Bhadur, (2000) 10 SCC 99

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Sahib Ram vs. State of Haryana, 1995 Supp (1) SCC 18 4. M.S.Rajendran vs. Chairman, TNEB, (2011) 4 MLJ 446

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In Sahib Ram vs. State of Haryana , reported in 1995 Supp (1) SCC 18 , the Hon'ble Supreme Court has held as follows : "5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal

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https://hcservices.ecourts.gov.in/hcservices/ erred in granting him the relaxation. Since the date of relaxation, the appellant had been

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paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal, for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant..."

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As per the decision of the Hon'ble Supreme Court, referred to above, it has been held that the excess amount paid by way of salary to a person, cannot be recovered, when there was no misrepresentation or fraud on the part of the employee, who had received the excess amount.

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In Bihar State Electricity Board vs. Bijay Bhadur , reported in (2000) 10 SCC 99 , the Hon'ble Apex Court has held as follows : "10. The High Court also relied on the unreported decision of the learned Single Judge in the case of Saheed Kumar Banerjee vs. Bihar SEB. We do record our concurrence with the observations of this Court in Sahid Ram case and come to a conclusion that since payments have been made without any representation or a misrepresentation, the appellant Board cannot under any circumstances be said to be in consonance with equity, good conscience and justice..."

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In the aforesaid decision also, it was ruled by the Hon'ble Apex Court that if there is any excess amount paid by way of increment in salary at an earlier point of time to an employee, without any misrepresentation or fraud by him, the same cannot be recovered from the retired employee.

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In Purshottam Lal Das vs. State of Bihar , reported in (2006) 11 SCC 492 , the Hon'ble Supreme Court has held thus :

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"7. So far as the recovery is concerned, in the normal course if the promotion / appointment is void ab initio, a mere fact that the employee had worked in the post concerned for long cannot be a ground for not directing recovery. The cases relied upon by the learned counsel for the State were rendered in a different backdrop. In those cases, the appellants were guilty of producing forged certificates or the appointments had been secured on nonhttps://hcservices.ecourts.gov.in/hcservices/ permissible grounds. In that background, this Court held that recovery is permissible. On

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the contrary, the fact situation of the present case bears some similarity to Sahib Ram vs. State of Haryana (1995 Supp (1) SCC 18), Bihar SEB vs. Bijay Bhadur [(2000) 10 SCC 99] and State of Karnataka vs. Mangalore University Non-Teaching Employees' Assn [(2002) 3 SCC 302] ."

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In the aforesaid decision, the earlier decisions rendered in Sahib Ram vs. State of Haryana (1995 Supp (1) SCC 18) was also referred to.

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It is an admitted fact that the petitioner was a Graduate teacher and he had attained superannuation on 30.06.1992, while he was working as Headmaster in the Government Higher Secondary School, Pallam, Madurai District. The petitioner has stated that he was given pension, as per the revised amount, in view of G.O.Ms.No.235. However, in the month of June 2011, the Assistant Treasury Officer, Sub-Treasury, Arupukottai, the second respondent herein informed that the petitioner was paid excess amount of pension and as per the impugned order, dated 10.08.2011, it was ordered to deduct Rs.8,000/- per month from June 2011 to September 2011 and the balance amount Rs.6,804/- was to be deducted in the month of October 2011, since the petitioner had been paid an excess amount of Rs.38,804/-. A copy of the communication sent by Assistant Treasury Officer, Sub-Treasury Office, Arupukottai is available at page number 2 of the typed set of papers, wherein it was informed that prior to the implementation of G.O.Ms.No.235, the pension payable was Rs.4,259/- for the petitioner and after the implementation of the said G.O, it could have been increased to Rs.9,627/-, however, an amount of Rs.17,266/- was paid wrongly for the month, 8,9,20/09 and that the error was found during Audit conducted for the year 2010-2011. It was contended that instead of 10/09, it was wrongly stated by respondents as 20/2009. The second respondent has also stated that earlier Rs.16,000/- was deducted at the rate of Rs.8,000/- per month for June and July 2011.

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It is seen from the letter sent to the petitioner by the second respondent that without providing any reasonable opportunity to the petitioner, the second respondent has stated that there was excess payment of Rs.38,804/- to the petitioner for 8,9 and 10/2009, at the rate of Rs.17,266/-p.m instead of Rs.9,627/- p.m. However, to substantiate that the correct amount calculated was Rs.9,627/- p.m, there is no supporting material available. Similarly, for the alleged disbursement of pension at the rate of Rs.17,266/- for the month of August, September and October 2009, no evidence was produced by the respondents.

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Even as per the calculation given by the second https://hcservices.ecourts.gov.in/hcservices/ respondent, if there was Rs.17,266/- paid instead of Rs.9,627/-, excess amount paid per month would be Rs.7,639/- and for three months it comes to Rs.22,917/- and not Rs.38,804/-. Merely by

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stating that there was excess amount of Rs.38,804/- paid to the petitioner in the year 2009 and that was found in the 2010-2011 Audit, the second respondent, sent a direct communication to the petitioner, stating that an amount of Rs.16,000/- at the rate of Rs.8,000/- p.m was to be deducted for June and July 2011 and the balance has to be deducted in the month of August and September 2011 at the rate of Rs.8,000/- p.m and the balance of Rs.6,804/would be recovered in the month of October 2011. The impugned letter sent by the second respondent to the petitioner in Ou.Mu.1929/2011/A, dated 10.08.2011 is apparently erroneous, even in respect of the calculation made and that was also decided by the respondents, without providing any opportunity to the petitioner. However, the second respondent, after making a recovery at the rate of Rs.8,000/- p.m, in the month of June and July 2011, informed the petitioner, that the alleged balance would be recovered from the pension payable to the petitioner, which is against principles of natural justice, since the second respondent unilaterally decided some amount, without providing opportunity to the petitioner and stated that an excess payment was made and that would be deducted from the pension amount payable to the petitioner during June and July 2011.

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As discussed earlier, even as per the calculation of the second respondent, communicated to the petitioner, an excess amount of Rs.7,639/- was paid for three months from August to October 2009, however, it is wrongly stated as 20/09 by the second respondent herein in the impugned letter.

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In Bihar State Electricity Board's case ( cited supra ), the Hon'ble Apex Court has ruled that since payments were made without any representation or misrepresentation, the appellant Electricity Board could not possibly be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time and that the act of the Board could not under any circumstance be construed to be in accordance with equity, good conscious and justice. Relying on the earlier decision rendered in Sahib Ram's case , the Judgment rendered by the High Court was confirmed by the Hon'ble Apex Court.

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In Purushottam Lal Das's case ( cited supra ), it was held that appointment was made for the Civil Surgeon, though a ban had been imposed by the State Government for the appointment and hence, the order of reversion, in the said case could not be faulted with. However, the payment already made could not be recovered, in view of the fact that there was no misrepresentation or fraud committed by the employee and no forgery certificate was produced by him for getting his appointment.

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This Court in M.S.Rajendran v. Chairman, TNEB , reported in https://hcservices.ecourts.gov.in/hcservices/ (2011) 4 MLJ 446 , held that recovery of mistaken excess payment from the salary of an employee cannot be made without providing

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him an opportunity of being heard. The said decisions are applicable to the facts and circumstance of this case.

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In the instant case, the petitioner, a retired Headmaster has challenged the order, dated 10.08.2011 made in Ou.Mu.1929/2011/A issued by the second respondent and sought an order in the nature of certiorarified mandamus to quash the said proceeding and direct the second respondent to repay a sum of Rs.16,000/-, that was already deducted from the pension amount payable to the petitioner in the month of June and July 2011, stating that there was excess payment during August to October 2009.

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Without providing any reasonable opportunity to the petitioner, the second respondent has unilaterally stated in his proceeding, dated 10.08.2011, that there had been excess payment to the tune of Rs.38,804/- for the period 8,9,20/09, though the petitioner could have been paid only at Rs.9,627/- p.m, however, as per the revised pension rate, he was wrongly paid Rs.17,266/p.m for the said period. It is an undisputed fact that without notice and providing opportunity to the petitioner, the second respondent simply stated in his proceeding that it was found during the Audit in the year 2010-2011 that excess payment had been made to the tune of Rs.38,804/- by the second respondent. It is crystal clear that even the calculation made in the proceeding is erroneous and it was not supported by any materials, further, the second respondent had unilaterally decided the amount and also deducted at the rate of Rs.8,000/- p.m in June and July 2011 from the petitioner's pension amount payable, accordingly, a total sum of Rs.16,000/- was deducted, without providing opportunity to the retired Headmaster, which is against law, in the light of the decisions referred to above.

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The Hon'ble Supreme Court in Babulal Jain v. State of M.P. , reported in (2007) 6 SCC 180 has categorically held that the excess payment having been made by allowing higher pay to the appellant, based on misconception of law and not due to any mistake, misrepresentation or fraud on the part of the appellant, recovery or excess payment, without issuing any show-cause notice to the appellant was not justified and the Hon'ble Apex Court directed the State of Madhya Pradesh, respondent to refund the said sum of Rs.22,000/-, that was deduced from the pension amount payable to the appellant therein without any justification. The said decision is squarely applicable to the identical facts and circumstances of this case.

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The second respondent has unilaterally, without providing any opportunity to the petitioner, by the impugned letter, dated https://hcservices.ecourts.gov.in/hcservices/ 10.08.2011, informed the petitioner that there had been excess payment of Rs.38,804/- made to the petitioner during August to October 2009 and that was found in the Audit for the year 2010-

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2011, accordingly, the recovery order was made to deduct at the rate of Rs.8,000/- p.m from June 2011 to September 2011 and the balance Rs.6,804/- would be recovered in the month of October 2011 and further, at the rate of Rs.8,000/- p.m was already recovered in the pension payable to the petitioner for June 2011 and July 2011, totally a sum of Rs.16,000/-.

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The aforesaid procedure followed by the respondents is against principles of natural justice and law and hence, the same is not sustainable, in view of various decisions rendered by the Hon'ble Apex Court referred to above.

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The order of deduction was made against law by the respondents, to recover the alleged excess amount from the pension payable to the petitioner for June and July 2011 and hence, the petitioner is entitled to get back the said amount, in the light of the decisions rendered by the Hon'ble Apex Court, referred to above.

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In the result, this writ petition is allowed and the impugned order passed by the second respondent in Ou.Mu.1929/2011/A, dated 10.08.2011 is quashed and the respondents are directed to refund the amount recovered, Rs.16,000/- from the pension amount payable to the petitioner in the month of June and July 2011, within a period of four weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed. No order as to costs.

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Sd/-

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Assistant Registrar (Records)

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/True Copy/

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Sub Assistant Registrar

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tsvn

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The District Collector Virudhunagar District, Virudhunagar.

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The Assistant Treasury Officer Sub-Treasury Office, Arupukottai,

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Virudhunagar District.

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+1CC to Mr.G.Marimuthu,Advocate in SR.No.41192

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+1CC to Special Government Pleader, in SR.No.41421

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Order in

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https://hcservices.ecourts.gov.in/hcservices/

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W.P.(MD).No.9504 of 2011 19-08-2013

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rg.04.10.2013 7p.5c.

Kuppauru, v. the District Collector

Case brief

What is this about?

What did the court decide?

Kuppauru, v. the District Collector

Case brief

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