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2024 DIGILAW 1979 (MAD)

Kathamuthu v. Accountant General (A & E)

2024-08-16

ABDUL QUDDHOSE

body2024
ORDER : Abdul Quddhose, J. PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus, calling for the records of the impugned order in Na.Ka.No.20296/E/2016 dated 23.09.2016 passed by the third respondent at the instance of the first respondent and quash the same and consequently directing the respondents to grant pension (PPO No.C182842/EDG) to the petitioner without any recovery. This Writ Petition has been filed by a Head Master challenging the impugned order dated 23.09.2016, passed by the third respondent, calling upon the petitioner to pay a sum of Rs.7,40,232/-, on account of the alleged excess payments made to him towards pension. 2.The alleged excess payments made to the petitioner pertains to the period from 01.01.2007 to 31.08.2016. The petitioner retired from service on 31.05.2006 itself. 3.Learned Counsel for the petitioner would submit that the impugned order passed by the third respondent is illegal and as such, recovery cannot be made after long number of years from the date of the petitioner's retirement. He would also submit that the petitioner is presently aged more than 75 years. In support of his submission, learned Counsel for the petitioner also drew the attention of this Court to the judgment of the Hon'ble Supreme Court in the case of Jagdish Prasad Singh Vs. State of Bihar and others reported in 2024 0 Supreme (SC) 649. The Hon'ble Supreme Court in the aforesaid decision has followed the oft quoted decision namely, State of Punjab and others Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334 and has held that 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 is impermissible in law. 4.Learned Government Advocate appearing for the official respondents would submit that on 04.10.2016, the petitioner has addressed a letter to the second respondent authorising the second respondent to make recoveries in respect of the alleged excess payments. 5.However, learned Counsel for the petitioner would submit that in view of the well settled law as laid down by the decisions of the Hon'ble Supreme Court that no recoveries can be made beyond the period of five years with regard to excess payments. Even if such an undertaking was given by the petitioner, it is immaterial. 5.However, learned Counsel for the petitioner would submit that in view of the well settled law as laid down by the decisions of the Hon'ble Supreme Court that no recoveries can be made beyond the period of five years with regard to excess payments. Even if such an undertaking was given by the petitioner, it is immaterial. He would also submit that the petitioner is aged more than 75 years and for no fault of his, he should not be penalised after long number of years from the date of his retirement, which happened in the year 2006. 6.A counter affidavit has also been filed by the third respondent reiterating the contents of the impugned order and reiterating that only due to the excess payments made by the respondents to the petitioner towards his pension, the impugned order has been passed correctly. 7.The law is now well settled by the decisions rendered by the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334 as well as in the case of Jagdish Prasad Singh Vs. State of Bihar and others reported in 2024 0 Supreme (SC) 649, that 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, is impermissible in law. In the case on hand also, the respondents have made the excess payments to the petitioner for more than five years ie., from 01.01.2007 to 31.08.2016 and only under the impugned order after almost 10 years, a recovery order has been issued by the third respondent to recover the alleged excess payments made to the petitioner, which is contrary to the well settled law that no recovery can be made in respect of payments made for a period of more than five years. 8.For the foregoing reasons, the impugned order dated 23.09.2016, passed by the third respondent has to be quashed and this Writ Petition has to be allowed. 9.In the result, the impugned order dated 23.09.2016 is hereby quashed and this Writ Petition is allowed. 8.For the foregoing reasons, the impugned order dated 23.09.2016, passed by the third respondent has to be quashed and this Writ Petition has to be allowed. 9.In the result, the impugned order dated 23.09.2016 is hereby quashed and this Writ Petition is allowed. However, it is made clear that with regard to the recovery that is already made, prior to the passing of the impugned order, the petitioner is not entitled to seek recovery of the same from the respondents as he has chosen to file the writ petition only after the passing of the impugned order and did not file the Writ Petition immediately after the first recovery is made from the petitioner. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.