The government cannot recover excess pension from a petitioner without following principles of natural justice and proving misrepresentation or fraud.

Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents.

2. The petitioner has stated that his father H. Krishnan was working as an accountant in the Panchayat Development Section at the Collectors Office, Tirunelveli, and he had retired from service on 269. The petitioners father was paid the pension due to him. He had died on 195. Since, his wife, the mother of the petitioner had died earlier, the pension that was being paid to the petitioners father was stopped from 112. 1995. While so, by an order of the second respondent, dated 8. 96, made in Rc.No.83/96(A-1), the petitioner has been intimated that a sum of Rs.34,944/-, being the excess amount paid as pension was ordered to be recovered from the monthly pension of H. Krishnan, the father of the petitioner. Since a sum of Rs.4344/- had been recovered from the monthly pension of H.Krishnan, the petitioner has been asked to remit the balance amount, failing which appropriate action would be pursued against the petitioner. In such circumstances, the petitioner has filed an original application before the Tamilnadu Administrative Tribunal in O.A.No.4881 of 1996, which has been transferred to this Court and re-numbered as W.P.No.29935 of 2006.

3. In the reply affidavit filed on behalf of the respondents, the claims made by the petitioner have been denied. It has been stated that the Annual Audit of Sub Treasury, Cheranmahadevi, for the year 1994, was taken up by the Regional Deputy Director of Treasuries and Accounts, Madurai. During the course of the audit, some overpayments in pension were pointed out in the notes of inspection and the Deputy Director had ordered the recovery of the over paid pension from the concerned pensioners and to credit the amount to the Government account. One such case pertains to H. Krishnan, the father of the petitioner. H.Krishnan was receiving the pension at the rate of Rs.69/-per month, with effect from 269. His pension was raised based on the various Government orders and it was fixed at Rs.474/-per month, as on 6. 88, along with the usual allowances. The arrears of pension was paid to H. Krishnan on 17. 92. Later, based on a letter of the Office of the Accountant General, Madras, in letter No.Pen26/93-94/Vol.122/182, dated .12.93, the petitioner was paid the arrears from the date of his retirement, i.e. from 211. 69 instead of from 12. 91, since the Government of Tamilnadu in its order in G.O.Ms.No.511, Finance (Pen) Department, dated 27. 93, had modified the orders made in G.O.Ms.No.911, dated 91. While refixing the pension with retrospective effect from 211. 69, excess payments have been made to the petitioner due to certain clerical errors. Therefore, the excess amount paid to the petitioner was objected to during the Annual audit conducted in the year 1994. In such circumstances, the second respondent had issued the impugned order, dated 8. 96, asking the petitioner to remit the amount of Rs.34,944/-, being the balance amount from

H. Krishnan, the father of the petitioner.

4. The learned counsel appearing for the petitioner had submitted that the petitioner cannot be held liable for any irregularity or excess payment made in respect of the pension paid to his father. With the death of the petitioners father, the payment of pension came to an end and the Departments right to recover any money from the pension amount had been extinguished. Since, the relationship of Master and Servant between the Government and the petitioners father, who was a Government servant, had ceased on his retirement, on 269. Further, there is no continuing cause of action in respect of such matters. It was also submitted that no show cause notice was served on the petitioner before the order of recovery of the alleged excess payment was made. The petitioner was not given an opportunity to put forth his case. Therefore, the impugned order of the second respondent, dated 8. 9