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2012 DIGILAW 2603 (MAD)

N. Subbarayan v. State of Tamil Nadu Rep.

2012-06-22

VINOD K.SHARMA

body2012
Judgment :- 1. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. The needful be done within two months of receipt of certified copy of this order. 11. 9. 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. 10. The needful be done within two months of receipt of certified copy of this order. 11. 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. 12. 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.