K. Thirudevi vs The Secretary to Government, Finance Department, The Additional Sub Treasury Officer and The District Treasury Officer, Cuddalore District Treasury

K.B.K. Vasuki, J.—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 refixation of the pay by the department without any fraudulent act or misrepresentation from his side. The issue involved herein is already dealt with by the Hon''ble Apex Court, Division Bench and single judge of this Court on more than one occasion. The Hon''ble Apex Court in the judgment reported in Syed Abdul Qadir and Others Vs. 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.

The Division Bench of this court in the decision reported in D. Palavesamuthu Vs. The Tamil Nadu Administrative Tribunal, 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.

The Division Bench of this Court in The Chief Engineer(General) Public Works Department, The Chief Engineer (Buildings) Public Works Department and The Executive Engineer, Public Works Department Vs. 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 P. Seethalakshmi Vs. The District Treasury Officer and The Sub-Treasury Officer, 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 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 pension. In the latest judgment of this Court reported in K. Kumaran Vs. 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.

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 any notice to the petitioner and without seeking any explanation for the same and without giving him any personal hearing, as such, the same is perse arbitrary, contrary to law and stands vitiated. In the result, the writ petition is allowed and the impugned order stands set aside. The respondents are directed to refund the amount so far recovered or retained towards the amount sought to be recovered. The refund shall be made within four weeks from the date of receipt of copy of this order. No costs.