Madras High Court
N.Subbarayan vs The State Of Tamil Nadu on 22 June, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.06.2012
CORAM:
THE HONOURABLE MR. JUSTICE VINOD K.SHARMA
W.P.No.27794 of 2010
N.Subbarayan ... Petitioner
Vs.
1 The State of Tamil Nadu
Rep. by the Commissioner,
Adi-Dravidar Welfare Dept.,
Chepauk, Chennai 600 005.
2 The Director of Adi-Dravidar and
Tribal Welfare Department,
Chepauk, Chennai 600 005.
3 The District Adi-Dravidar and
Tribal Welfare Officer,
Vellore District, Vellore.
4 The Headmaster,
Govt. Adi-Dravidar Welfare
Boys Higher Secondary School,
Chevvapet, Thiruvallur District.
5 The Union of India
Rep. By the Accountant General,
Accounts & Entitlements,
Tamil Nadu, Anna Salai,
Chennai 600 018. ... Respondents
Writ petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ in the nature of Certiorari, to quash the order passed by the respondent No.4 pertaining to his order which is made in Na.Ka.176/2005 dated 03.01.2007 and consequential relief of issuance of a writ in the nature of mandamus, directing the respondents 1 to 4 to refund the amount of recovery of Rs.1,68,909/- to the petitioner and also direct the respondent No.5 to re-fix the retirement benefits of the petitioner by taking into account of the last pay drawn by him as on 30.06.2005 consequently directing the respondents to pay the arrears of retirement benefits including arrears of pension to the petitioner.
For Petitioner : Mr.R.Malaichamy
For Respondents : Mr.R.Vijayakhumar
1 to 4 Addl. Govt. Pleader
*****
O R D E R
The petitioner joined the service as Secondary grade teacher (Tamil) at Kuravankudisai Village, Walaja Taluk on 03.08.1978. The petitioner was thereafter promoted to the post of B.T. Assistant (Tamil) on 10.08.1982 and thereafter as P.G. Assistant (Tamil) on 16.08.2003.
2 The petitioner attained the age of superannuation on 30.06.2005, but allowed to continue till expiry of academic year.
3 Taking into account of the last pay drawn, the pension of the petitioner was fixed, however, a sum of Rs.1,68,909/- (Rupees one lakh sixty eight thousand nine hundred and nine only) was deducted out of DCRG benefit, on the ground that certain allowances were paid to the petitioner in excess.
3 It is submitted that last drawn basic pay of the petitioner was Rs.11,300/- (Rupees eleven thousand and three hundred only)., but subsequently, his retirement benefit including pension have been calculated by taking into account of the last pay as Rs.9525/- (Rupees nine thousand five hundred and twenty five only) and alleged excess payment is deducted out of retiral benefits.
4 The submission of the petitioner is, that no show cause notice was issued to the petitioner before refixing the pension of the petitioner, and ordering recovery.
5 The impugned order is challenged by the petitioner on the ground that in the absence of allegation of fraud or misrepresentation, it was not open to the respondents to recover the amount from an employee even if paid wrongly.
6 The order of refixation is challenged on the ground that it is in violation of principle of natural justice, as it was not open to the respondents to reduce the last pay drawn without following principle of natural justice.
7 The learned Addl. Govt Pleader does not dispute the fact that the impugned order has been passed without issuing show cause notice to the petitioner, therefore, in view of the settled law that the order affecting the civil right, cannot be passed without following the principle of natural justice, the impugned order cannot be sustained in law. 8 Consequently, the writ petition is allowed. The impugned order is set aside. A writ in the nature of mandamus is issued directing the respondents to refund the amount deducted from the DCRG of the petitioner.
9 The needful be done within two months of receipt of certified copy of this order.
10 It is made clear that if the payment is not made within two months, the petitioner shall be entitled to interest at the rate of 12% p.a. on this amount from the due date till the date of payment. 11 It shall however be open to the respondents to pass fresh order of refixation of pension after giving opportunity of hearing to the petitioner, if so advised. However, it shall not be open to the respondents to recover the amount paid in excess even if erroneously,in view of the settled law that benefit even though wrongly granted cannot recovered in absence of allegation of fraud or misrepresentation. No cost.
22.06.2012 Index : Yes/No Internet : Yes/No vaan To 1 The Commissioner, Adi-Dravidar Welfare Dept., Chepauk, Chennai 600 005.
2 The Director of Adi-Dravidar and Tribal Welfare Department, Chepauk, Chennai 600 005.
3 The District Adi-Dravidar and Tribal Welfare Officer, Vellore District, Vellore.
4 The Headmaster, Govt. Adi-Dravidar Welfare Boys Higher Secondary School, Chevvapet, Thiruvallur District.
5 The Union of India Rep. By the Accountant General, Accounts & Entitlements,Tamil Nadu, Anna Salai, Chennai 600 018.
VINOD K.SHARMA,J.
vaan W.P.No.27794 of 2010 22.06.2012