Quashed

K.Chinnappan v. the District Adi Dravidar

Madras HC5 Mar 2014WP/8565/2007

Case brief

AI extract

What is this about?

The High Court of Madras quashed an order directing the recovery of excess pension paid to a petitioner due to erroneous pay fixation. The Court held that recovery is impermissible without fraud or misrepresentation and noted procedural violations including lack of notice and hearing.

What did the court decide?

The impugned order passed by the first respondent to recover excess amount from the petitioner's pension was quashed.

K.Chinnappan Vs the District Adi Dravidar — 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.8565 of 2007

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(OA.No.4103 of 2002)

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K.Chinnappan .. Petitioner

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Vs.

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1.The District Adhi Drvidar and Tribal Welfare Officer, Cuddalore

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2.The Special Tahsildar (ADW) Virudhachalam. .. Respondents

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Prayer : Writ Petition, having been transferred from the file of the Tamil Nadu Administrative Tribunal in O.A.No.4103 of 2002, is filed to call for the records of the first respondent relating to his proceedings dated 24.12.2001 made in W.7/73438/2000 and to quash the same.

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For Petitioner : Mr.K.Radhakrishnan For Respondents : M/s.M.E.Raniselvam, AGP. O R D E R

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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 erroneous fixation of pay 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 issued with show cause notice by the first respondent on 02.04.2001, directing him to show cause within 15days as to why recovery of Rs.97,388/- representing excess payment should not be made during the period from 01.01.1996 to 31.08.1998 and also for the discrepancies noted during further period. However, before expiry of 15days time, the respondent by order dated 12.4.2001 directed the petitioner to pay the sum of Rs.97,388/- immediately. Challenging the same, the petitioner preferred O.A.No.4383/2001 before the Tamil Nadu Administrative Tribunal. The Tribunal directed the petitioner to submit his explanation to the show cause notice. Pursuant to the same, the petitioner submitted his explanation and requested to furnish a copy of the audit report. However, the first respondent, without considering his explanation and without furnishing audit report, passed the impugned order. Hence, O.A.No.4103/2002 came to be filed

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

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before the Tribunal, which was subsequently transferred to this Court and renumbered as present writ petition.

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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

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

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pension. In the latest judgment of this Court reported in 2014 WLR 171 K.Kumaran V. Central Pension Accounting Office, Trikoot-2 and 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 considering the explanation offered by the petitioner and without furnishing the copy of the documents asked for by the petitioner 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/-
Assistant Registrar
//True Copy//
Sub Assistant Registrar
rk
To
1.The District Adhi Drvidar and Tribal Welfare Officer,
Cuddalore.
2.The Special Tahsildar (ADW), Virudhachalam.

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1 cc to Mr.K.Radhakrishnan,Advocate, SR.No.10824

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WP.No.8565 of 2007

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ppa(co) pmk.30.5.2014

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

K.Chinnappan v. the District Adi Dravidar

Case brief

What is this about?

What did the court decide?

K.Chinnappan v. the District Adi Dravidar

Case brief

What is this about?

What did the court decide?

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