O R D E R

The writ petitioner is a family pensioner. The husband of the writ petitioner Sri.K.Muniappan was employed as Selection Grade Lecturer in H.H.Rajas College, Pudukkottai and he died on 29.01.2008. Thereafter, the writ petitioner is receiving family pension as per the orders passed by the respondents. There was no misrepresentation or otherwise on the part of the writ petitioner as she was not aware of the fixation of pension as well as family pension done at the instance of the Establishment Section of the respondents. However, the impugned order, in proceedings dated 09.12.2015, is passed based on the audit objection that an excess payment was made to the writ petitioner on account of erroneous fixation of pay to the husband of the writ petitioner.

2. The learned counsel for the writ petitioner states that no notice or opportunity was given to the writ petitioner before passing the impugned order.

3. This Court is of the considered opinion that any order affecting the service rights and monetary benefits of an employee is to be passed only after providing an opportunity to the employee concerned. Thus, the impugned order in the present case on hand is in violation of the principles of natural justice. However, the pension is to be paid in accordance with the Pay Rules and Government Orders in force. Excess payment cannot be made to the pensioner or family pensioner. In this regard, the authorities concerned are bound to correct the revision of pension as well as the family pension and pay the correct family pension as applicable to the writ petitioner in accordance with the Government Orders and Pay Rules in force.

4. The learned counsel appearing for the second respondent brought to the notice of this Court that the Honourable 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.”

5. The three Judges Bench of the Honourable 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 (cited supra) as stated above and held that the law laid down by the two Judges Bench of the Supreme Court of India is to be followed as precedent in the matter of recovery of excess payment to the employees by the State or Union, wherein it has been held as follows:-

“7. In Chandi Prasad Uniyal's case (Supra), a specific issue was raised and canvassed. The issue was whether the Appellant-therein can retain the amount received on the basis of irregular/wrong pay fixation in the absence of any misrepresentation or fraud on his part. The Court after taki