Jharkhand High Court
Sanjeev Kumar Singh vs M/S National Institute Of Foundry And ... on 21 October, 2024
Author: S. N. Pathak
Bench: S.N. Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 5085 of 2018
Sanjeev Kumar Singh, son of Late Tara Prasad Singh, resident of Vikash Nagar
(Singh More), Hatia, District- Ranchi. .... .... Petitioner
Versus
1. M/s National Institute of Foundry and For Technology (NIFFT), Ranchi.
2. Director, NIFFT, Ranchi.
3. Professor in Charge (Admin), NIFTT, Ranchi.
4. Union of India through the Secretary, Ministry of Public Grievances and
Pension (Department of Pension and Pensioners Welfare), New Delhi.
.... ... Respondents
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CORAM : HON'BLE DR. JUSTICE S.N. PATHAK
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For the Petitioner : Mr. Vijay Bahaur Singh, Advocate
For the Respondents : Mr. Ram Lakhan Yadav, Advocate
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14/ 21.10.2024 Though the present writ petition has been filed praying for
direction upon the respondents to pay the differences of entire retiral benefits
and arrears of pension, but during course of argument, learned counsel
appearing for the petitioner confines his prayer that the petitioner is aggrieved
with deduction from the arrears of pension to the tune of Rs. 25,620/-, which
has already been paid from 2008 onwards as Tribal Area Allowances while he
was posted at Ranchi.
2. Learned counsel appearing for the petitioner submits that the
impugned deduction is not tenable in the eyes of law on the ground that no
recovery / deduction can be made from the pension, if the excess payment, so
paid was not on account of his misrepresentation. Admittedly, there is no
misrepresentation on the part of the petitioner in getting the said allowance. To
strengthen his arguments that the said deduction is not justified, he refers the
judgment rendered in the case of State of Punjab vs. Rafiq Masih
(whitewasher) & Ors., reported in (2015) 4 SCC 334.
3. On the other hand, learned counsel representing the respondent-
State submits that indisputably the said amount was paid in excess and if an
employee is not entitled what he has received, there is no bar to recover / deduct
the said excess amount even after retirement. Justifying the impugned order,
learned counsel submits that there is no illegality therein.
4. Having heard the rival contentions of the learned counsel for the
parties and upon perusal of the records, this Court is of the considered view that
the case of the petitioner needs consideration. Law is well settled that before
recovery or deduction, an adequate opportunity must be provided to the
employee concerned. In the present case, no opportunity was ever provided to
the petitioner before passing the order of recovery, as is well evident from the
pleadings of the parties.
5. The Hon'ble Apex Court in the case of N.D.P. Namboodripad
(Dead) By Lrs. Vs. Union of India & Ors., reported in (2007) 4 SCC 502 held
that "if any excess payment has been made to the appellant, it shall not,
however, be recovered from the legal representatives of the deceased."
6. The issue regarding recovery from retiral-cum-pensionery benefits
is no more res integra. The same has been set at rest in view of the celebrated
judgment in the case of State of Punjab & Ors. Vs. Rafiq Masih (White
Washer) & Ors. (supra). The relevant paragraph-18 is quoted herein below:-
"18. It is not possible to postulate all situations of hardship, which
would govern employees on the issue of recovery, where payments have
mistakenly been made by the employer, in excess of their entitlement.
Be that as it may, based on the decisions referred to herein above, we
may, as a ready reference, summarise the following few situations,
wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service
(or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire
within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for
a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to
discharge duties of a higher post, and has been paid accordingly,
even though he should have rightfully been required to work against
an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that
recovery if made from the employee, would be iniquitous or harsh or
arbitrary to such an extent, as would far outweigh the equitable
balance of the employer's right to recover."
7. Further the Hon'ble Apex Court in the case of High Court of
Punjab and Haryana & Ors. Vs. Jagdev Singh, reported in (2006) 14 SCC
267 held that before any order of recovery is passed, it is incumbent upon the
employer to put the employee on notice. Admittedly, in the present case, no
notice was ever given to the present petitioner.
8. The argument of the learned counsel for the respondents that the
recovery is fully justified is not tenable in view of the law laid down by the
Hon'ble Apex Court. No doubt true that the amount of pension is always a part
of retirement benefits. If some excess amount has been paid to the employee,
who was working on Grade-III, the same cannot be deducted after retirement.
For recovery / deduction, from retirement benefits, the procedures have to be
adopted. In the instant case, no procedure has been adopted for recovery of the
amount under the Pension Rules and as such, the order of recovery cannot be
justified and the same is bad in the eyes of law.
9. In view of the aforesaid discussions, the respondents are directed
to extend the entire amount of pensionery benefits and if any amount is
recovered, the same shall be refunded to the petitioner, at the earliest, preferably
within a period of eight weeks from the date of receipt / production of a copy of
this order.
10. With the aforesaid observations and directions, this writ petition
stands allowed.
(Dr. S. N. Pathak, J.)
R.Kr.
