Recovery from Family Pensioner after five years is not permissible in law in absence of fraud or misrepresentation – Madras High Court – 21-03-2025.
2025:MHC:727
WP(MD).22607
of 2022
BEFORE
THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED
ON : 13.03.2025
PRONOUNCED
ON : 21.03.2025
CORAM:
THE
HONOURABLE MR.JUSTICE SHAMIM AHMED
WP(MD)No.22607
of 2022
WMP(MD)Nos.16775
and 16776 of 2022
A.Pavunammal, W/o.B.Aandappan (Late)
No.7/35, Sempatti, Andakulam Post
Kulathur, Pudukottai Petitioner(s)
Vs
1. The Accountant General (A&E), Department of
Treasuries and Accounts, Chennai-18
2. The District Treasury Officer, Pudukottai
3. The Assistant Treasury Officer, Sub Treasury Keeranur,
Pudukottai
Respondent(s)
Prayer:- This Writ
Petition has been filed, under the Article 226 of the Constitution of India, to
issue a Writ of Certiorari to call for the records relating to the order passed
by the 3rd Respondent, in proceedings in Na.Ka.No.312A, dated 22.08.2022 and to
quash the same.
For Petitioner(s) : Mr.Alagia Nambi
For Respondent(s) : Mrs.S.Mahalakshmi-R1
Mr.D.Sadiq Raja, AGP and
Mr.P.Thambidurai, GA -RR2 and 3
ORDER
1. This Writ
Petition has been filed, under the Article 226 of the Constitution of India, to
issue a Writ of Certiorari to call for the records, relating to the order
passed by the 3rd Respondent, in proceedings in Na.Ka.No.312A, dated 22.08.2022
and to quash the same.
2. The facts of
case, in a nutshell, led to filing of this Writ Petition and necessary for
disposal of same, are that the Petitioner's husband, B.Aandappan had joined as
a Village Head Man on 17.05.1957 and after his retirement, he died on
19.11.2017. By the GO.Ms.No.828 (Rev), dated 23.08.1996, family pension was
sanctioned in favour of the Petitioner from 19.12.2018 onwards. The Petitioner
received the entitled pending pension amount and she also started to receive
the family pension at the rate of Rs.6,750/.- p.m. While so, in the year 2022,
the 3rd Respondent had passed the impugned order, dated 22.08.2022, stating
that since it was found, during the audit conducted by the concerned
Authorities that an excess family pension amount to the tune of Rs.2,94,233/-
was paid to her for the period from 20.11.2017 to 31.07.2022, the Petitioner
had to repay the above said excess amount. From 01.08.2022 onwards, the pension
amount was not credited in her pension account till date to recover the alleged
excess pension amount paid to her. Hence, contending that unless the impugned
order of recovery is set aside, she will be put to irreparable loss and
hardship, since she is the sole bread-winner of the family and relying on
various decisions of the Honourable Supreme Court and the High Courts, passed
in similar circumstances, this Writ Petition has been filed, seeking the prayer
as stated above.
3. In the counter affidavit filed by the 3rd
Respondent, it is stated as follows:-
(a) The husband of
the Petitioner, B.Aandappan had joined as a Village Head Man on 17.05.1957 and
after his retirement, he died on 19.11.2017. The husband of the Petitioner was
dismissed from service with special ordinance passed by the Government of Tamil
Nadu, with effect from 14.11.1980. Then, as per GO.Ms.No.828,
dated 23.08.1996, he was authorised to receive a
special pension of Rs.175/- with effect from 05.12.1986 and at Rs.250/- from 22.07.1998,
by the 1st Respondent, vide Pension Payment Order No. 52871/VOA and he was
drawing pension from the Office of the 3rd Respondent.
(b)As per the
GO.Ms.No.336, Finance Department, dated 17.11.2017, the pension was revised at
Rs.6750/- with effect from 01.10.2017. Based on the application of the
Petitioner, seeking family pension, she was sanctioned the family pension of
Rs.6,750/- plus allowance per month as per the Rules in force with effect from
20.11.2017 by the 3rd Respondent by the Order No.49/2018/A1, dated 19.02.2018 and
she was paid family pension upto July 2022 in the above mentioned rate of
pension.
(c)While so,
during the Audit of Keeranur Sub Treasury records by the Regional Joint
Director of Treasuries and Accounts, Trichy during July 2022, it was found that
though the Petitioner is a Ex.V.O's Family Pensioner, she is eligible for the
pension of Rs.2,250/- plus allowances only with effect from 20.11.2017 as per
G.O.Ms.No.336, Finance Department, dated 17.11.2017 and hence, excess payment of
pension and allowances amounting to Rs.2,94,233/- has to be recovered from the
Petitioner. During the Audit, the Petitioner had also given a consent letter,
dated 22.08.2022 to recover the excess amount in monthly instalment basis at
the rate of Rs.3,000/- p.m. from her monthly pension. Only on the basis of the
consent letter for recovery of the excess pension amount paid to her, the 3rd
Respondent had passed the impugned order, dated 22.08.2022 for recovery of the
excess pension amount paid to the Petitioner and revised the monthly pension
from Rs.6,750/- to Rs.2250/- from August 2022 onwards. Since the Petitioner's
family pension is not in consonance with the GO.Ms.No.336, dated 17.11.2017,
hence, the excess pension amount paid to the Petitioner has to be recovered. In
such circumstances, this Writ Petition is liable to be dismissed.
4. This Court
heard Mr.Alagia Nambi, the learned counsel for the Petitioner and
Mrs.S.Mahalakshmi, the learned Standing Counsel for the 1st Respondent and
Mr.D.Sadiq Raja, the learned Additional Government Pleader and
Mr.P.Thambidurai, the learned Government Advocate for the Respondents 2 and 3.
5. For the sake of
convenience, the Petitioner and her late Husband are herein after referred to
as the Family Pensioner and the Government Servant or Pensioner, respectively.
6. The learned
counsel for the Petitioner/Family Pensioner has submitted that the impugned
order had been passed, without giving sufficient opportunity or show cause
notice to the Petitioner, thereby violating the principles of natural justice
and that the family pension cannot be recovered from the family pensioner, even
if an excess amount has been paid by way of either mistake or wrong fixation.
The learned counsel would further submit that recovery cannot be made from the
retired employees and also when the excess payment has been made for a period
in excess of five years and from the employees belonging to Class III and Class
IV Service (Group C and D Categories) and that when there was no
misrepresentation or fraud on the part of the Pensioner/Family Pensioner for
receiving the pension more than the elgible pension amount, recovery of the
same cannot be permissible in law, that too, after a long duration of period
and hence, the impugned order is not sustainable and that the Respondents may be
directed to pay the arrears of the family pension amount at the rate
of Rs.6,750/- p.m. from 01.08.2022 till date and
therefore, to continue to pay the family pension at the above said rate, by
allowing this Writ Petition.
7. In support of
his contentions, the learned counsel for the Petitioner/Family Pensioner has
relied on the following decisions:-
i. 2015 4 SCC 334 (State of Punjab Vs.
Rafiq Masih (White Washer) and others.
ii. 2022 1 CTC 736 (R.Jeyaprakash Vs.
Executive Officer)
iii. Judgement and order, dated 26.07.2019
made in
WP(MD)No.20358 of 2014 (C.Rajeswari Vs.
The
Accountant General (A&E), Chennai and
others of the
Madurai Bench of the Madras High Court.
8. The learned
counsel for the Respondents, while reiterating the averments made in the
counter affidavit filed by the 3rd Respondent, submit that since the family
pension of the Petitioner is not in conformity with the GO.Ms.No.336,
17.11.2017, which entitles the Petitioner/Family Pensioner to receive the
family pension only with effect from 20.11.2017 and when the Petitioner/Family
Pensioner herself had given a consent letter on 22.08.2022 to recover the
excess family pension amount paid to her in monthly instalments, the impugned
order, directing the Petitioner to repay the excess pension amount paid to her
is in order and hence, this Writ Petition is not sustainable and consequently,
the Respondents are entitled to recover the said excess pension amount paid
from the Petitioner/Family Pensioner, as per the impugned order.
9. I have given my careful and anxious consideration
to the contentions put forward by the learned counsel on either side and also
perused the entire materials available on record.
10. On perusal of
the records, it is seen that admittedly, the deceased husband of the
Petitioner, B.Aandappan was a Government Servant and Pensioner. The Petitioner
is the wife of B.Aandappan, who had joined as a Village Head Man on 17.05.1957
and after his retirement, he died on 19.11.2017 and thus, the Petitioner is the
Family Pensioner.
11. According to
the Family Pensioner, she was sanctioned family pension as per GO.Ms.No.828,
dated 23.08.1996 from 19.12.2018 onwards and started to receive the pension at
the rate of Rs.6,750/- p.m. The said fact is also not in dispute. However,
pursuant to the impugned order, family pension is not credited to the account
of the Family Pensioner from 01.08.2022. There is also a interim order of stay
of recovery, passed by this Court on 27.09.2022.
12. According to
the Respondents, the husband of the Petitioner/Family Pensioner was dismissed
from service with special ordinance passedby the Government of Tamil Nadu with
effect from 14.11.1980. As per the G.O.Ms.No.828, dated 23.08.1996, he was
authorised to receive a special pension of Rs.175/- with effect from 05.12.1986
and at Rs.250/- from 22.07.1998. As per the GO.Ms.No.336, Finance Department,
dated 14.11.2017, the pension was revised at Rs.6750/- with effect from
01.10.2017.
13. However, it is
the contention of the Respondents that since in the Audit conducted in July
2022, it was found that she is eligible for the pension amount of Rs.2,250/-
plus allowances only with effect from 20.11.2017 and since as per the
G.O.Ms.No.336, Finance Department, dated 17.11.2017, the family pension of the
Petitioner is not in order, the impugned order, dated 22.08.2022 was passed,
directing the Petitioner to repay the excess payment of pension and allowances amounting
to Rs.2,94,233/-. Only after receiving the consent letter from the
Petitioner/Family Pensioner on 22.08.2022 for recovery of the excess amount,
the impugned order had been passed.
14. Be that as it
may, firstly, it is to be seen that whether there was sufficient opportunity or
show cause notice given to the Petitioner/Family Pensioner before passing the
impugned order of recovery of the excess pension amount paid to her. It is
stated by the Respondents that the Petitioner/Family Pensioner had given a
consent letter on 22.08.2022 to recover the excess pension amount paid to the Petitioner/Family
Pensioner, but the impugned order had been passed on the same day itself, i.e.
on 22.08.2022. There is no evidence to show that the Petitioner/Family
Pensioner had given such a consent letter. There is also no evidence to show
that the Family Pensioner was given sufficient opportunity or show cause notice
before passing the impugned order. Thus, it is established that the
Petitioner/Family Pensioner was not given sufficient opportunity or a show
cause notice at all before passing the impugned order of recovery. Hence, the impugned
order is in violation of principles of natural justice. On this ground, the
impugned order is vitiated.
15. Secondly, even
assuming that there was sufficient opportunity or show cause notice given to
the Petitioner/Family Pensioner, it is to be seen as to whether the impugned
order, directing the Petitioner/Family Pensioner to repay the excess pension
amount paid to her, after a long duration of time after the retirement of the Pensioner/Government
Servant, that too, after his demise, is permissble in law?
16. In this case,
admittedly, the Government Servant, who is the husband of the Petitioner/Family
Pensioner, died on 19.11.2017 after his retirement. Even according to the
Respondents, the husband of the Petitioner was dismissed from service with
special ordinance passed by the Government of Tamil Nadu, with effect from
14.11.1980. As per the GO.Ms.No.828, dated 23.08.1996, the Government Servant was
authorised to receive a special pension of Rs.175/- with effect from 05.12.1986
and at Rs.250/- from 22.07.1998, by the 1st Respondent, vide Pension
Payment Order No.52871/VOA and he was drawing the pension from the Office of
the 3rd Respondent. After the demise of the Government Servant on 19.11.2017,
the Petitioner/Family Pensioner was sanctioned with the family pension as per
the GO.Ms.No.828, dated 23.08.1996, from 19.02.2018. Even as per the averments
made in the counter affidavit filed by the 2nd Respondent, the
Family Pensioner was paid with the family pension upto July 2022 at the rate of
Rs.6,750/- plus allowances p.m. Even
prior to date of
death of the husband of the Family Pensioner, on 19.11.2017, the Government
Servant retired. Thus, it is clear that the impugned order had been passed on
22.08.2022 after more than five years from the date of retirement of the
Government Servant, that too after the demise of the Pensioner/ Government
Servant on 19.11.2017.
17. At this
juncture, in the above said facts and circumstances, it would be appropriate to
refer to the decision of the Honourable Supreme Court rendered in the case of State
of Punjab Vs. Rafiq Masih (White Washer) and others, reported in 2015 4 SCC
334, on the question of permissibility of the Respondents/Recovering
Authorities to recover the excess payments. In the said decision, the
Honourable Supreme Court had summarized a few situations of hardship that may be
faced by a Government Servant/Employee on the issue of recovery and held to be
impermissible in law. Among these situations, (i) recovery from the employees
belonging to Class III and Class IV (Group C and Group D) Categories, (ii)
recovery from the retired employees or the employees, who are due to retire
within one year and (iii) recovery from the employees when the excess payment
has been made for a period in excess of five years, before the order of recovery
is issued, etc. are some of the situations, which were held to be impermissible
in law in the above said decision.
18. In 2015 4
SCC 334 (State of Punjab Vs. Rafiq Masih (White Washer) and others, the
Honourable Supreme Court, was pleased to observe as under:-
“12. It is not
possible to postulate all situations of hardship, which would govern employees
on the issue of recovery, where payments have mistakenly been made by the
employer, in excess of their entitlement. Be that as it may, based on the
decisions referred to herein above, we may, as a ready reference, summarise the
following few situations, wherein recoveries by the employers, would be
impermissible in law:
(i) Recovery from employees belonging to Class-III and
Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from
retired employees, or employees who are due to retire within one year, of the
order of recovery.
(iii) Recovery from employees, when the excess payment
has been made for a period in excess of five years, before the order of
recovery is issued.
(iv) Recovery in
cases where an employee has wrongfully been required to discharge duties of a
higher post, and has been paid accordingly, even though he should have
rightfully been required to work against an inferior post.
(v) In any other
case, where the Court arrives at the conclusion, that recovery if made from the
employee, would be iniquitous or harsh or arbitrary to such an extent, as would
far outweigh the equitable balance of the employer's right to recover.”
19. The present
case is squarely covered by the one of the situations summarised by the
Honourable Supreme Court referred to above, namely, recovery from retired
employees, or employees who are due to retire within one year, of the order of
recovery, inasmuch as, in the present case, admittedly the Government
Servant, after his retirement from service, died on 19.11.2017 and the impugned
order of recovery was passed on 22.08.2022 more than five years after the retirement
and death of the Government Servant. In view of the law laid down by the
Honourable Supreme Court as stated supra, the impugned order, contemplating
recovery of the excess payment, cannot be legally sustained.
20. In 2009 3 SCC 475 (Syed Abdul Qadir Vs. State
of Bihar), the Honourable Supreme Court was pleased to observe as under:-
“59. Undoubtedly,
the excess amount that has been paid to the appellants - teachers 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 bona
fide 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
appellantsteachers should be made.”
21. In 2022 1
CTC 736 (R.Jeyaprakash Vs. Executive Officer), the Madurai Bench of the
Madras High Court was pleased to observe as under:-
“40.The ratio to
be gleaned is that the facts and circumstances of every case have to be
examined and appreciated on their own merit to discern whether the re-fixation
and recovery in question was warranted or justified. Exceptional circumstances that
call for complete justice must be taken note of while deciding the fate of the
action initiated. 41.The take-away thus, is that the duty of the Court must be
to balance whether the re-fixation and recovery ordered is iniquitous or unfair
on the one hand or whether the corresponding right of the employer to recover
the amount is greater on the other hand, in effect, whether the recovery has 'a
harsh and arbitrary effect on the employee'. In deciding so, the Court must
bear in mind that the concerned employee would normally not have any vested
right in the excess amount received by him. It is upon an application of those
principles that the present case must be decided.”
22. In the
judgement and order, dated 26.07.2019 made in WP(MD)No.20358 of 2014
(C.Rajeswari Vs. The Accountant General (A&E), Chennai), the Madurai
Bench of the Madras High Court was pleased to observe as under:-
“3. This Court is
of the opinion that the family pension cannot be recovered from the family
pensioner, even if an excess amount has been paid by way of either mistake or
wrong fixation. This apart, the monetary benefits cannot be recovered from the
family pensioner, without providing any show cause notice or opportunity to the
person affected.
5. The writ
petitioner is a family pensioner and there was no misrepresentation or
otherwise on the part of the writ petitioner, even there was no undertaking in
this regard. Under these circumstances, the impugned order of recovery is
untenable and the excess payment already paid to the writ petitioner cannot be recovered
from the writ petitioner. This being the factum, the following orders are
passed:
i. The impugned order of recovery, dated 14.11.2014,
passed by the second respondent, is quashed.
ii. The respondents are directed to fix the correct
scale of pay
as applicable to the writ petitioner's husband and
accordingly, pay the revised family pension and continue the pay to the writ petitioner
with reference to the pension rules in force.”
23. It is also
pertinent to note that unless it is established that the said excess payment
was made due to misrepresentation of
fraud on the part of the Government Servant or the family pensioner, recovery
of the same cannot be permitted. Admittedly, in the present case, it is not the
case of the Respondents that there was misrepresentation or fraud on the part
of the deceased Government Servant or the Petitioner/Family Pensioner in
getting the excess pension amount. After demise of the Government Servant, the
Family Pensioner was receiving the family pension and she is the only bread
winner of the family. This Court is of the view that at this stage, recovery of
excess payments, made from the Petitioner/Family Pensioner, when her husband
had retired from service very long back and also died, would entail harsh
consequences. Therefore, this Court finds no reason to exercise its judicial
discretion exercising judiciously so as to justify the claim of the Respondents
to recover the excess pension amount paid to the Petitioner/Family Pensioner,
at this long duration of period.
24. To sum and
substance, in this case, as stated above, the Petitioner was not given a
sufficient opportunity or show cause notice, before passing the impugned order.
In view of the above said referred decisions of the Honourable Supreme Court
and the Honourable Principal Bench and the Madurai Bench of the Madras High
Court, the impugned order of recovery cannot be permissible in law, since the
impugned order was passed after long duraion of period after retirement of the
husband of the Petitioner/Family Pensioner. Therefore, there is no merits
whatsoever in the claim of the Respondents to recover the excess pension amount
paid to the Petitioner/Family Pensioner, at this belated stage and hence, the present
Writ Petition is liable to be allowed and the impugned order of recovery is
liable to be quashed.
25. In the result,
in the light of the observations and the discussions made above and in the
light of the decisions referred to above, this Writ Petition is allowed,
as prayed for. The impugned order passed by the 3rd Respondent, in proceedings in Na.Ka.No.312A,
dated 22.08.2022 is hereby quashed. The Respondents are directed to pay the
arrears of the family pension amount, if any, at the rate of Rs.6,750/- p.m.
from 01.08.2022 till the date of payment, within a period of six weeks from the
date of receipt of a certified copy of this order and thereafter, to continue to pay the family
pension at the above said rate to the Petitioner/Family Pensioner regularly.
26. There is no order as to costs. Consequently, the
connected Writ Miscellaneous Petitions are closed.
21.03.2025
Index:Yes.No
Web:Yes.No
Speaking.Non Speaking
Neutral Citation
Srcm
To
1. The Accountant General (A&E), Department of
Treasuries and
Accounts
Chennai-18
2. The District Treasury Officer, Pudukottai
3. The Assistant Treasury Officer, Sub Treasury,
Keeranur, Pudukottai
https://www.mhc.tn.g1o8v/.1in9/judis ( Uploaded on:
21/03/2025 11:56:09 am )
WP(MD).22607 of 2022
SHAMIM AHMED, J.
Srcm
Pre-Delivery Order in
WP(MD)No.22607 of 2022
21.03.2025
https://www.mhc.tn.g1o9v/.1in9/judis
( Uploaded on: 21/03/2025 11:56:09 am )
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