Quashed

R. Kanagaraj v. the Block Development

Madras HC5 Mar 2014WP/11758/2007

Case brief

AI extract

What is this about?

The Court quashed a recovery order directing the deduction of excess pension payments. Relying on Supreme Court precedents, it held that recovery is impermissible for payments made without fraud or misrepresentation due to departmental negligence, especially when procedural safeguards were ignored.

What did the court decide?

The impugned recovery order passed by the First Respondent is quashed; the writ petition is allowed.

R. Kanagaraj Vs the Block Development — Pension and Retirement Benefits | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 05.03.2014

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CORAM:

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THE HONOURABLE MS. JUSTICE K.B.K.VASUKI

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W.P.No.11758 of 2007 (OA.No.4106 of 2002)

R.Kanagaraj

.. Petitioner

Vs.

1.The Block Development Officer,

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Karamadai Panchayat Union, Karamadai.

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2.The District Collector, Coimabtore District, Coimbatore. .. Respondents

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Prayer : Writ Petition, having been transferred from the file of the Tamil Nadu Administrative Tribunal in O.A.No.4106 of 2002, is filed to call for the records relating to the order of the first respondent dated 19.06.2002 issued in the reference Na.Ka.No.1702/2002/A1 and to quash the same.

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For Petitioner : Mr.R.Muthukannu. For Respondents : M/s.M.E.Raniselvam, AGP.

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The short point that arises for consideration herein is as to whether the petitioner is liable to repay the excess amount which is paid to him by way of increments by the department without any fraudulent act or misrepresentation from his side.

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The few facts which are relevant for consideration herein are as follows : The petitioner was appointed as Record Clerk on 22.04.1982 on compassionate ground and his service was regularised on 23.03.1984. Subsequently, after completion and declaration of probation on 12.03.1985, he was promoted to the post of Junior Assistant. After passing all the papers of departmental examinations, the petitioner was promoted to the post of Assistant by an order dated 07.10.1994. While working so, the first respondent passed an impugned order dated 19.06.2002 stating that the increments granted to the applicant in the cadre of Junior Assistant and Assistant have been cancelled and recovery has been ordered. Aggrieved against the order of recovery, the petitioner approached the Tamil Nadu Administrative Tribunal by way of OA.No.4106 of 2002 and the same was thereafter transferred to this Court and renumbered as present writ petition.

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

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3.Heard both sides.

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4.The issue involved herein is already dealt with by the Hon'ble Apex Court and the Division Bench and single judge of this Court on more than one occasion. The Hon'ble Supreme Court in the authority reported in 1995 Supp (1) SCC 18 (Sahib Ram V. State of Haryana and others) observed that for upgraded pay scale given due to wrong construction of relevant order by the authority concerned without any misrepresentation by the employee, the employee cannot be held to be fault and under the circumstances the amount paid till date may not be recovered from the employee.

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5.The Hon'ble Apex Court in the judgment reported in 2009 (1) Supreme 163 Syed abdul Qadir and others V. State of Bihar and others has laid down that the recovery of excess amount not paid on any account of misrepresentation or fraud on the part of the employee or made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of particular interpretation of rule/order which is subsequently found to be erroneous, is not permissible and whenever any excess amount is paid due to negligence and carelessness of the officials concerned, the employee cannot be punished by effecting recovery.

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The Division Bench of this court in the decision reported in (2006) 1 MLJ 143 (D.Palavesamuthu v.Tamil Nadu Administrative Tribunal represented by its Registrar, Chennai and others) was of the view that the course and method adopted by the Tribunal cannot be appreciated in the case of the petitioner. Even if it is accepted for argument sake that 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 lapse of number of years that too after retirement of the petitioner.

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The Division Bench of this Court in 2009 (5) MLJ 1 Chief Engineer (General) Public Works department, Chennai-5 V. M.Thanasekaran has observed that if the excess payment is made by the State even though by mistake, such excess payment cannot be recovered. The same view was also expressed by the learned single judge of this Court in (2009) 8 MLJ 621 P.Seethalakshmi V. District Treasury Officer, Madurai and another wherein this Court has set aside the recovery order issued without any notice and without even any written order to the petitioner. While doing so, it is also observed therein that the action of the respondents in effecting recovery from pension without even any written order is highly arbitrary and in violation of principles of natural justice and even the minimum requirement of principles of natural justice was not observed, while taking an adverse decision to effect recovery of the pension. In the latest judgment of this Court reported in 2014 WLR 171 K.Kumaran V. Central Pension Accounting Office, Trikoot-2 and

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

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others the amount which was recovered from the pension as excess payment is directed to be refunded to the employee.

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In my considered view, the principles laid down by the Hon'ble Supreme Court and our High Court in the decisions cited above are squarely applicable to the facts of the present case, wherein the excess amount paid is not on the basis of any misrepresentation or fraud on the part of the employee and the recovery order is issued without any notice to the petitioner and without seeking any explanation for the same and without giving him any personal hearing, as such, the same is perse arbitrary, contrary to law and stands vitiated.

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In the result, the impugned order passed by the first
respondent stands quashed and the writ petition is accordingly
ordered. No costs.
Sd/-
Asst. Registrar.
DT/-29/05/2014.
/true copy/
Sub Asst. Registrar.
tsh
To
1.The Block Development Officer,
Karamadai Panchayat Union, Karamadai.
2.The District Collector,
Coimabtore District, Coimbatore.

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WP.No.11758 of 2007 KJI[co] gp/30.5.

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

R. Kanagaraj v. the Block Development

Case brief

What is this about?

What did the court decide?

R. Kanagaraj v. the Block Development

Case brief

What is this about?

What did the court decide?

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