D.Saraswathi v. The District Treasury Officer

O R D E R The writ petition is filed challenging the orders of recovery dated

04.07.2014 and 11.07.2014 issued by the second respondent and for consequential direction to pay the revised pension as per the Accountant General authorisation dated 13.02.2024.

¶2According to the petitioner, she is a pensioner, who worked as Headmistress and got superannuated on 31.01.1995. The pensioners, who retired between 01.06.1988 and 31.12.1995 contested the issue in respect of payment of Dearness Allowance for revising the pension had instituted proceedings before the Court and ultimately the issue went upto the Hon'ble Supreme Court and ended in favour of the pensioners by the judgment of the Hon'ble Supreme Court in Civil Appeal Nos.8848 to 8870 of 2012 dated

17.01.2013. In compliance to the decision of the Hon'ble Apex Court, the Government had issued G.O.(Ms)No.363, Finance Department dated

23.08.2013.

¶3Pursuant to the above Government Order, the Accountant General had revised the pension and issued the authorisation to the first respondent vide proceedings dated 13.02.2014. In compliance to the same, the pension of the petitioner was revised and the difference amount was also paid to her. All of a sudden, without issuing any notice and affording an opportunity to the petitioner, by impugned proceedings 11.07.2014, a sum of Rs.4,20,731/- was sought to be recovered from the petitioner by directing her to deposit the same. Assailing the same, the petitioner had preferred the above writ petition.

¶4The learned counsel for the petitioner submitted that even though the revision in pension was granted only based on the authorisation issued by the Accountant General on 13.02.2014, which was in due compliance to the decision of the Hon'ble Supreme Court, which resulted in the issuance of G.O.(Ms)No.363, Finance Department dated 23.08.2013 and the benefits were paid, the impugned orders seeking to recover the amounts by refixing the pension is issued, without even issuing any notice and affording an opportunity to the petitioner, which is, in violation of the principles of natural justice. It is further contended that since the petitioner is a pensioner who had retired from service as early as in the year 1995, the impugned recovery is impermissible in view of the judgment of the Hon'ble Supreme Court in the case of State of Punjab Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334.

¶5Per contra, the learned Additional Government Pleader for the respondents, even though he had not filed the counter affidavit, fairly submitted that the orders refixing the pension of recovery have been passed, without affording an opportunity to the petitioner and therefore the matter may be remitted back to the respondents for fresh consideration, after affording necessary opportunity to the petitioner. While doing so, the issue in respect of the recovery will also be considered in view of the settled decision in White Washer's case stated supra.

¶6Heard the submissions made by the learned counsel appearing on both sides and perused the materials available on record.

¶7Admittedly, the petitioner, who had worked as Headmistress in the Government School, retired on 31.01.1995 and she is receiving pension from the respondents. Several pensioners who had retired between

01.06.1988 and 31.12.1995 had instituted proceedings before the Court in respect of payment of Dearness Allowance and consequently revised the pension. The issue ultimately went upto the Hon'ble Supreme Court and by its judgment dated 17.01.2013 in Civil Appeal Nos.8848 to 8870 of 2012, the issue ended in favour of the pensioners. In compliance to the order of the Hon'ble Apex Court, G.O.(Ms)No.363, Finance Department dated

23.08.2013 came to be passed, extending the benefits for those employees who retired between 01.06.1988 and 31.12.1995.

¶8As per the Government Order issued in G.O.(Ms)No.363, Finance Department dated 23.08.2013, the Accountant General had revised the pension to the petitioner and had issued authorisation to the first respondent on 13.02.2014. Pursuant to which, the pension was revised and the difference in amount was also paid to the petitioner.

¶9While so, the impugned order dated 04.07.2014 was issued by which the petitioner was directed to deposit a sum of Rs.2,63,081/- immediately to the treasury account. The impugned order reads that the same was passed based on the phone instructions received from the Treasury Officer. The relevant portion is extracted hereunder:- "nghUs; : xa;t+jpak; murhiz vz;:363-d; gb jpUj;jpa xa;t+jpak; - toq;fpaJ toq;fpa njhifia kPs gpbj;jk; nra;jy; - njhlh;ghf ghh;it : fUt+y mYtyh; khtl;l fUt+yk; tpOg;Guk; mth;fspd; njhiyNgrp jfty; ghh;itapy; fhZk; fUt+y mYtyh; mth;fspd; njhiyNgrp jftypd; gb murhid vz;: 363-d; gb jpUj;jpa xa;t+jpa njhif &.2>63>081/- (&gha; ,uz;L ,yl;rj;J mWgj;jp %thapuj;J vz;gj;jp xd;W kl;Lk;) ,f;fbjk; fpilj;j cld; muR fzf;fpy; Nrh;j;jpl mwpTWj;jg;gLfpwhh;fs;."

¶10Subsequently, another impugned order dated 11.07.2014 was issued stating that wrong calculation has been made in the earlier order dated 04.07.2014 and the petitioner was directed to deposit a sum of Rs.4,20,731/- immediately to the treasury account. The relevant portion is extracted hereunder:- "nghUs; : xa;t+jpak; murhiz vz;:363-d; gb jpUj;jpa xa;t+jpak; - toq;fpaJ toq;fpa njhifia kPs gpbj;jk; nra;J - mDg;Gjy; - rhh;G ghh;it : fUt+y mYtyh; khtl;l fUt+yk; tpOg;Guk; mth;fspd; njhiyNgrp jfty; ghh;itapy; fhZk; fUt+y mYtyh; mth;fspd; njhiyNgrp jftypd; gb murhid vz;: 363-d; gb jpUj;jpa xa;t+jpa njhif &.4>20>731/- (&gha; ehd;F ,yl;rj;J ,Ugj;jhapuj;J VOE}w;ep Kg;gj;jp xd;W kl;Lk;)

muR

fzf;fpy;

nrYj;jg;glNtz;Lk;. jq;fSf;F fbjj;jpy; &.2>63>081/- ,j;njhif jtWjyhf nrYj;JkhW njhptpf;fg;gl;Ls;sjhy;> ,j;jpUj;jpa njhifapid md;dhh; muR fzf;fpy; &.4>20>731/- &gha; nrYj;jpl mwpTWj;jg;gLfpwJ. nrYj;jg;gl;l tptuj;jpid ,t;tYtfj;jpw;F efy; mDg;GkhW Nfl;Lf; nfhs;sg;gLfpwhh;."

¶11On perusal of the impugned orders, it reveals that the same have been passed without issuing any notice affording an opportunity to the petitioner. As per the impugned orders, the pension is sought to be revised and only pursuant to which, this amount is sought to be recovered. While so, necessarily the respondents ought to have issued notice to the petitioner and only after affording her necessary opportunity, a decision would have been taken.

¶12In the absence of any such notice, this Court is of the considered view that the impugned orders issued by the respondents is in violation of the principles of natural justice. Further, in view of the settled decision in White Washer's case stated supra, any order of recovery from the employees who had retired from service, is impermissible. The relevant portion of the said judgment is extracted hereunder:- "18. 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 the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(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.

(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."

¶13It could be seen that the pension has been refixed and the difference has been paid only based on their own calculation of the respondents by implementing G.O.(Ms)No.363, Finance Department dated

23.08.2013 and also on the authorisiation issued by the Accountant General. While so, ultimately when the petitioner is a retired employee, the recovery that is sought to be made as per the impugned orders is impermissible in view of the decision in White Washer's case.

¶14In view of the above observations, this Writ Petition stands allowed and the impugned orders dated 04.07.2014 and 11.07.2014 passed by the second respondent for recovery are set aside. However the respondents are at liberty to issue proper notice to the petitioner in respect of refixation of pension and after affording an opportunity to the petitioner, take a decision, on merits and in accordance with law.

¶15There shall be no order as to costs. Consequently, connected Miscellaneous Petitions are closed.

30.10.2024 Speaking order / Non-speaking order Index : Yes / No : Yes / No sri To

1.The District Treasury Officer, Villupuram.

2.The Assistant Treasury Officer, Vanur, Villupuram District. W.P.No.19414oofo2014 Goo .ARULoMURUGANo,oJ. sri W.P.No.19414oofo2014 andoM.P.Nos.1o&o2oofo2014

30.10.2024 oooooo[2/2]

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.10.2024 CORAM: THE HONOURABLE MR.JUSTICE G.ARUL MURUGAN and M.P.Nos.1 & 2 of 2014 D.Saraswathi ... Petitioner versus 1.The District Treasury Officer, Villupuram. 2.The Assistant Treasury Officer, Vanur, Villupuram District. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, calling for the records in pursuant to the impugned orders of recovery issued by the second respondent in proceeding Na.Ka.No.A1/477/2014 dated 04.07.2014 and the subsequent impugned order of recovery issued by the second respondent in proceeding Na.Ka.No.A1/477/2014 dated 11.07.2014 and quash the same and direct the respondents to pay the revised pension as per the Accountant General authorisation dated 13.02.2014. For Petitioner : Mr.N.Om Prakash for Mr.R.Prem Narayan For Respondents : Mr.Stalin Abhimanyu Additional Government Pleader