Madras High Court
K.Sundari vs The Commissioner Of Treasuries And ... on 12 August, 2024
Author: Abdul Quddhose
Bench: Abdul Quddhose
W.P.(MD)No.5695 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.08.2024
CORAM
THE HONOURABLE MR JUSTICE ABDUL QUDDHOSE
W.P.(MD)No.5695 of 2017
and
W.M.P.(MD).No.4539 of 2017
K.Sundari ... Petitioner
Vs.
1.The Commissioner of Treasuries and Accounts,
Panagal Building,
Saidapet,
Chennai-600 015.
2.The Accountant General (A&E),
Tamil Nadu,
Chennai-600 015.
3.The Assistant Treasury Officer,
Paramakudi,
Ramanathapuram District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified mandamus, calling for the records relating to
the impugned order relation to civil pension-excess payment dated 09.01.2017
in Na.Ka.No.671/A3/2016, on the file of the third respondent and quash the
same and consequently direct the third respondent to repay the amount
recovered from the petitioner within the stipulated period.
1/10
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.5695 of 2017
For Petitioner : Mr.K.Rajeshwaran
For R-1 & R-3 : Mr.S.Kameswaran,
Government Advocate
For R-2 : Mr.P.Gunasekaran,
Standing Counsel
ORDER
Heard Mr.K.Rajeshwaran, learned counsel appearing for the petitioner, Mr.S.Kameswaran, learned Government Advocate appearing for respondent Nos.1 and 3 and Mr.P.Gunasekaran, learned Standing Counsel appearing for the second respondent.
2. This Writ Petition has been filed challenging the impugned order dated 09.01.2017, passed by the third respondent, directing the petitioner to pay a sum of Rs.60,913/- (Rupees Sixty Thousand Nine Hundred and Thirteen only) which was paid in excess to the petitioner's husband viz., P.Kuthalam, who was an employee in the Highways Department.
3. The petitioner after the death of her husband has been receiving family pension. The petitioner's husband, P.Kuthalam, was working in the Highways 2/10 https://www.mhc.tn.gov.in/judis W.P.(MD)No.5695 of 2017 Department and he retired from service. After his death, the petitioner has been receiving family pension.
4. According to the petitioner, after her husband's demise, she was receiving a family pension of a sum of Rs.8,458/- (Rupees Eight Thousand Four Hundred and Fifty Eight only) and last drawn family pension by her was Rs.9,198/- (Rupees Nine Thousand One Hundred and Ninety Eight only). According to the petitioner, without any enquiry and without adhering to the principles of natural justice, the third respondent has passed the impugned order directing the petitioner to pay a sum of Rs.60,913/- (Rupees Sixty Thousand Nine Hundred and Thirteen only) towards alleged excess payment made by the respondents towards the family pension of the petitioner from September 2016 onwards.
4.1. According to the petitioner, the third respondent has already recovered illegally a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) from the petitioner towards excess amount made by them without prior notice to the petitioner. The petitioner claims that she is an aged person and she is suffering from Asthma, Hyper Blood Pressure and she is an Osteoporosis patient and is spending huge amount of money towards her medical treatment. 3/10 https://www.mhc.tn.gov.in/judis W.P.(MD)No.5695 of 2017
5. Learned counsel drew the attention of this Court to the decision of the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and Others reported in (2015) 4 SCC 334 and would submit that the petitioner's husband being a Class-III employee, the respondents are not permitted to recover the excess payment made by them as per the aforesaid decision. He also drew the attention of the Division Bench Judgment of this Court rendered in W.A.(MD).No.604 of 2024, dated 03.04.2024 in the case of D.Kanagaraj Vs. The Principal Secretary, Department of Health and Family Welfare, Fort St.George, Chennai-9 and others and would submit that in the said decision of the Division Bench, followed the decision rendered by the Hon'ble Supreme Court in White Washer's case referred to supra and held that no recovery can be made by the respondents in respect to excess payment and if any recovery was already made, the same has also been directed to be refused back to the writ petitioner therein. Therefore, he would submit that the petitioner is also entitled to a similar direction from this Court namely to direct the respondents to return the money which was recovered by the respondents from the petitioner on account of excess payment made by them. 4/10 https://www.mhc.tn.gov.in/judis W.P.(MD)No.5695 of 2017
6. On the other hand, learned counsels appearing for the respective respondents drew the attention of this Court to the Judgment of the Hon'ble Supreme Court in the case of State of Punjab and Others Vs Rafiq Masih (Whitewasher) reported in (2014) 8 SCC 883 and in particular, they were referred to Paragraph No.7 of the said Judgment, wherein, the Hon'ble Supreme Court had followed the decision of the Hon'ble Supreme Court rendered in Chandi Prasad Uniyal and others Vs. State of Uttarakhand and others reported in (2012) 8 SCC 417, wherein, it was held that even if by mistake of the employer, the amount is paid to the employee and on a later date, if the employer after proper determination of the same discovers that the excess payment is made by mistake or negligence, the excess payment so made could be recovered. Relying upon the aforesaid decision, learned counsels appearing for the respective respondents, would submit that there is no error committed by the respondents in passing the impugned order as only due to the fact that the excess payments were made, the petitioner has been directed to refund the excess payment amounting to Rs.60,913/- (Rupees Sixty Thousand Nine Hundred and Thirteen only).
7. It is an admitted fact that the petitioner's husband was working as Mechanic in the Highways Department and he is a Class-III employee. The said 5/10 https://www.mhc.tn.gov.in/judis W.P.(MD)No.5695 of 2017 fact is also not disputed by learned counsels appearing for the respective respondents. In the decision rendered by the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and Others reported in (2015) 4 SCC 334 relied upon by learned counsel appearing for the petitioner, it has been made clear that even if excess payments were made by mistake committed by the respondents, recovery cannot be made from a Class- III employee or Class-IV employee. In the decision relied upon by learned counsels appearing for the respective respondents, which was rendered prior to the Second Whitewasher's case relied upon by the learned counsel appearing for the petitioner which is reported in (2014) 8 SCC 883, the said decision did not deal with a issue as to whether recovery could be made from a Class-III or Class-IV employee. When the subsequent decision of the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and Others reported in (2015) 4 SCC 334 has made it clear that, the recovery of excess payment cannot be made from Class III or Class IV employee, then, necessarily, the said decision will have to enure for the benefit of the petitioner.
8. Though in the decision relied upon learned counsels appearing for the respective respondents, viz, in the case of State of Punjab and Others Vs Rafiq 6/10 https://www.mhc.tn.gov.in/judis W.P.(MD)No.5695 of 2017 Masih (Whitewasher) reported in (2014) 8 SCC 883 that permits the recovery of excess payment, the said decision cannot be applied to the facts of the present case, as admittedly, the petitioner is a Class-III employee and it has been also been made clear in the subsequent decision of the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and Others reported in (2015) 4 SCC 334 that recovery cannot be made from Class- III or Class-IV employees.
9. The Division Bench of this Court in W.A.(MD).No.604 of 2024, dated 03.04.2024 relied upon by learned counsel appearing for the petitioner in the case of D.Kanagaraj Vs. The Principal Secretary, Department of Health and Family Welfare, Fort St.George, Chennai-9 and others also supports the case of the petitioner as in that case also erroneously the excess payments were made to a Class-III employee and the impugned order seeking payment of excess payments were challenged and the Division Bench held that such recovery cannot be made and if any recovery has already been made, the same shall be returned back to the writ petitioner therein.
10. The facts of the present case is identical to the facts of the case in the Division Bench decision of this Court in W.A.(MD).No.604 of 2024 dated 7/10 https://www.mhc.tn.gov.in/judis W.P.(MD)No.5695 of 2017 03.04.2024 relied upon the learned counsel appearing for the petitioner. Admittedly, in the instant case, the petitioner is a Class-III employee. Out of the total sum of Rs.60,913/- (Rupees Sixty Thousand Nine Hundred and Thirteen only) a sum of Rs.14,238/- (Rupees Fourteen Thousand Two Hundred and Thirty Eight only) has already been recovered from the petitioner. The recovery made by the respondents is contrary to the decision rendered by the Honble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and Others reported in (2015) 4 SCC 334 and the impugned order directing the petitioner to pay the entire amount of Rs.60,913/- (Rupees Sixty Thousand Nine Hundred and Thirteen only) is also contrary to the said decision and therefore, the impugned order has to be necessarily quashed and the third respondent has to be directed to refund the excess payment of a sum of Rs.14,238/- (Rupees Fourteen Thousand Two Hundred and Thirty Eight only) recovered from the petitioner within a time frame to be fixed by this Court.
11. Accordingly, the impugned order dated 09.01.2017 in Na.Ka.No. 671/A3/2016 passed by the third respondent is quashed and the third respondent is directed to refund the sum of Rs.14,238/- (Rupees Fourteen Thousand Two Hundred and Thirty Eight only) recovered from the petitioner towards the 8/10 https://www.mhc.tn.gov.in/judis W.P.(MD)No.5695 of 2017 alleged excess payment made by them to the petitioner within a period of eight weeks from the date of receipt of a copy of this order.
12. In the result, the Writ Petition stands allowed. No costs. Consequently, the connected miscellaneous petition is closed.
12.08.2024 NCC:yes/no Index:yes/no Internet:yes/no TSG To
1.The Commissioner of Treasuries and Accounts, Panagal Building, Saidapet, Chennai-600 015.
2.The Accountant General (A&E), Tamil Nadu, Chennai-600 015.
3.The Assistant Treasury Officer, Paramakudi, Ramanathapuram District.
9/10 https://www.mhc.tn.gov.in/judis W.P.(MD)No.5695 of 2017 ABDUL QUDDHOSE, J.
TSG W.P.(MD)No.5695 of 2017 12.08.2024 10/10 https://www.mhc.tn.gov.in/judis