(Prayer: Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned order passed by the second respondent in Na.Ka.No.Nil/2015 dated 15.10.2015 and quash the same as illegal and consequently, direct the second respondent to refund the deducted payment in the month of October, 2015 for a sum of Rs.6,152/- to the petitioner.)

The order of recovery dated 15.10.2015 issued by the second respondent is sought to be quashed.

2. The writ petitioner was holding the post of Headmaster at Panchayat Union Primary School at Permalpatti, Peraiyur Taluk, Madurai District and retired from service on 30.09.1996. The fixation of pay as well as the pension was granted to the writ petitioner at the instance of the establishment of the respondent Department. However, audit objections were raised in respect of the fixation of pay as well as the pension and consequently, the impugned order of recovery was issued to recover the excess salary/pension already paid to the writ petitioner, in violation of the pay rules and the Government Orders in force.

3. The learned counsel appearing on behalf of the writ petitioner states that no show cause notice or opportunity was provided to the writ petitioner. Thus, the impugned order is in violation of the principles of natural justice. This apart, there is no misrepresentation or otherwise on the part of the writ petitioner.

4. The learned Additional Government Pleader appearing on behalf of the second respondent is unable to establish that an opportunity was provided to the writ petitioner.

5. Under these circumstances, this Court is of the considered opinion that any order, affecting the service rights or conditions of an employee, cannot be issued without providing an opportunity to the employee concerned. This apart, the writ petitioner is a pensioner and retired from service on 30.09.1996. The writ petitioner is now aged about 81 years. Under these circumstances, any further recovery from the pension of the writ petitioner would affect his normal livelihood.

6. The learned counsel appearing for the first respondent brought to the notice of this Court that the Hon'ble Supreme Court of India has fixed the ratio in the case of Chandi Prasad Uniyal and others Vs. State of Uttarakhand and others reported in (2012) 8 SCC 417, and the same is to be followed as precedent, wherein it has been held as follows:-

“14. We are concerned with the excess payment of public money which is often described as “taxpayers' money” which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the Government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.”

7. The three Judges Bench of the Hon'ble Supreme Court of India in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) reported in (2014) 8 SCC 883, also reiterated the principles laid down in the case of Chandi Prasad Uniyal as stated above and held that the law laid down by the two Judges of the