Bal Krishan Sharma vs State Of Haryana And Ors
2022 Latest Caselaw 6319 P&H

CWP-25821-2016                                                              1

           IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH



(213)                            CWP-25821-2016
                                 Date of Decision : July 07, 2022


Bal Krishan Sharma                                          .. Petitioner


                                 Versus


State of Haryana and others                                  .. Respondents

CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI

Present: Mr. Vikas Chatrath, Advocate, for the petitioner.

Mr. Raman Kumar Sharma, Additional Advocate General, Haryana.

Mr. I.P. Singh, Advocate, for respondent No.3.

HARSIMRAN SINGH SETHI J. (ORAL)

In the present petition, the challenge is to the order dated

07.11.2016 (Annexure P-1) by which, excess payment made to the

petitioner is being recovered.

Learned counsel for the petitioner argues that the petitioner

retired on attaining the age of superannuation on 30.11.1990 and petitioner

was being paid the regular pension. In the year 2016, the petitioner received

an order, a copy of which has been attached as Annexure P-1 stating that the

petitioner has received pension more than his entitlement and the excess

amount paid to the petitioner be refunded back. The said order (Annexure

P-1) is under challenge in the present petition on the ground that no

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recovery of excess amount can be done from the retired employee keeping

in view the judgment of the Hon'ble Supreme Court of India in State of

Punjab and others Vs. Rafiq Masih (White Washer) etc., 2015(1) S.C.T.,

195.

After notice of motion, the respondents have filed the reply

wherein, the respondents have stated that at the time when the petitioner

retired, he had given an undertaking that in case, any excess payment is

made to the petitioner, the same will be refunded to the respondents.

Learned counsel for the respondents has submitted that even in

respect of recovery notice Annexure P-1, the petitioner has not disputed the

excess amount and has rather prayed that he will return the excess amount

in installments, hence, once the petitioner himself has agreed to retun the

amount in installments coupled with the fact that at the time of receiving the

benefits, the petitioner has given an undertaking extending a right to the

respondents to recover the excess payment, the judgment in Civil Appeal

No. 3500 of 2006 titled as High Court of Punjab & Haryana and others

Vs. Jagdev Singh, decided on 29.07.2016, will be applicable and not Rafiq

Masih's case (supra).

I have heard learned counsel for the parties and have gone

through the record with their able assistance.

In the present case, the payment of excess amount is not being

disputed. The undertaking given by the petitioner is also not being

disputed. That being so, once the petitioner has given an undertaking at the

time of receiving the pension that any excess payment given to him, will be

refunded back, the petitioner is under an obligation to refund the excess

payment. In Jagdev Singh's case (supra), the Hon'ble Supreme Court of

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India held that where an employee at the time of receiving the benefit has

given an undertaking that in case, the said payment is not found entitled for,

the same will be refunded, the Department is well within its right to recover

the same. The relevant paragraph of the said judgment is as under:-

" -x -x -

9. The submission of the Respondent, which found favour with

the High Court, was that a payment which has been made in

excess cannot be recovered from an employee who has retired

from the service of the state. This, in our view, will have no

application to a situation such as the present where an

undertaking was specifically furnished by the officer at the time

when his pay was initially revised accepting that any payment

found to have been made in excess would be liable to be

adjusted. While opting for the benefit of the revised pay scale,

the Respondent was clearly on notice of the fact that a future

re-fixation or revision may warrant an adjustment of the excess

payment, if any, made.

10. In State of Punjab & Ors etc. vs. Rafiq Masih (White

Washer) etc1. this Court held that while it is not possible to

postulate all situations of hardship where payments have

mistakenly been made by an employer, in the following

situations, a recovery by the employer 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

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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." (emphasis supplied).

11. The principle enunciated in proposition (ii) above cannot

apply to a situation such as in the present case. In the present

case, the officer to whom the payment was made in the first

instance was clearly placed on notice that any payment found

to have been made in excess would be required to be refunded.

The officer furnished an undertaking while opting for the

revised pay scale. He is bound by the undertaking.

- x - x -"

Keeping in view the above, as the petitioner has given an

undertaking at the time of receiving the pension and undisputedly, the

petitioner has received the amount beyond his entitlement, in the facts and

circumstances of the present case, keeping in view the settled principle of

law in Jagdev Singh's case (supra), no fault can be found with the

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respondents in recovering the amount from the petitioner.

No ground is made out to grant the petitioner the benefit as

being prayed in the present petition.

Dismissed.

July 07, 2022                            (HARSIMRAN SINGH SETHI)
harsha                                         JUDGE

            Whether speaking/reasoned : Yes
            Whether reportable       : Yes




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