Sona Devi vs State Of Haryana And Others
2023 Latest Caselaw 20602 P&H

Punjab-Haryana High Court

Sona Devi vs State Of Haryana And Others on 29 November, 2023

Author: Harsimran Singh Sethi

Bench: Harsimran Singh Sethi

                                                           Neutral Citation No:=2023:PHHC:151476




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CWP-1203-2020                                                       1

201
      IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH

                                              CWP-1203-2020
                                              Date of Decision: 29.11.2023

Sona Devi
                                                                      ...Petitioner

                                     Versus
State of Haryana and others

                                                                  ...Respondents

CORAM:- HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI

Present:    Mr. S.K. Redhu, Advocate for the petitioner.

            Mr. Harish Rathee, Sr. D.A.G., Haryana.

            Ms. Neha Rana, Advocate respondent No.4.

HARSIMRAN SINGH SETHI, J. (Oral)

1. In the present petition, grievance of the petitioner is that her

family pension has been deducted to the tune of 50% so as to recover the

excess amount which was paid to her by the respondents.

2. Certain facts needs to be mentioned for the correct

appreciation of the issue in hand.

3. One Sh. Kanwar Singh late husband of the petitioner who

was working with the Department of Health, Haryana, retired on

attaining the age of superannuation on 31.01.2004. After the retirement,

the said Kanwar Singh S/o Roop Ram was granted the benefit of pension.

The husband of the petitioner died on 23.07.2005 but the pension was

being granted to Kanwar Singh. In the year 2019, the respondents

realized their mistake of giving the pension to a dead employee rather

than fixing the family pension of the petitioner, the respondent issued an

order recovering the excess amount paid to Kanwar Singh by way of

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pension, so as to be deducted from the family pension for which the

petitioner was entitled for after the death of her husband.

4. The grievance of the petitioner is that without giving any

recovery notice, straightaway the deduction have been made from the

entitlement of the family pension of the petitioner which is arbitrary and

illegal. As per the petitioner, no recovery can be made from a retired

employee or the legal heirs of the retired employee or with regard to an

amount which was being paid by the respondent for a continuous period

of five years, keeping in view the judgment of Hon'ble Supreme Court

passed in 'Civil Appeal No.11527 of 2014 titled as 'State of Punjab and

others Vs. Rafiq Masih and others'.

5. The respondents are defending the recovery being done from

the petitioner. The respondent No.4-Bank has filed the reply, wherein, it

has been mentioned that the mistake occurred at the hands of the bank in

not granting the family pension after the death of the husband of the

petitioner and the dead employee was being paid the pension and when

the said mistake was detected in the year 2019, the deductions receiving

of excess payment was ordered to be recorded from the entitlement of

family pension. Learned counsel submits that the petitioner herself

allowed the Bank to deduct the amount, keeping in view the request

Annexure R4/1.

6. The State in its reply has submitted that there is no role of

the State in recovering the amount from the petitioner as the same is

being done by the Bank at their own and that too without there being any

order passed by the State.

7. I have heard learned counsel appearing on behalf of the

respondents and have gone through the record with the able assistance.

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8. It is the matter of fact that the pension was being paid by the

respondent-Bank after the death of the husband of the petitioner. The said

error was attributable to the bank only and not to the petitioner. Once

there is no misrepresentation on part of the petitioner to get an amount,

the recovery being done from her is totally contrary to the settled

principle of law settled by the Hon'ble Supreme Court of India in Rafiq

Masih's case (supra). The relevant paragraph-12 of the judgment is as

under:-

'12. 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.'

9. A bare perusal of the above reproduction would show that no

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recovery can be made from a retired employee and in the present case,

the excess amount was paid to the husband of the petitioner who was

retired employee and had already died much before the order of the

recovery was passed. Even otherwise, any amount which was being paid

for a period of five years, the same cannot be recovered and in the

present case, it is a conceded position that the amount of pension was

paid to the husband of the petitioner from the year 2005 onwards till

2019 i.e. for a period of 14 years. That being factual position, learned

counsel for the respondent has not been able to rebut the fact that keeping

in view the law settled by the Supreme Court of India in Rafiq Masih's

case (supra), no recovery can be made from the petitioner.

10. Even otherwise, as per the judgment of the Hon'ble Supreme

Court of India in 'Civil Appeal No.7115 of 2010 decided on 02.05.2022

titled as Thomas Daniel Vs. State of Kerala and others', no excess

payment can be recovered in case, there was no misrepresentation on the

part of the employee concerned. In the present petition, there is not even

a single allegation that either the husband of the petitioner or the

petitioner made any misrepresentation so as to get the excess amount.

The relevant paragraph of the judgment is as under:-

9. 'This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery

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is ordered. This Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess'.

Even on this principle of law, the recovery which was being

done from the petitioner is bad in law.

11. Even otherwise, in the present case the recovery is being

done without complying with the Rules of natural justice. No show cause

notice whatsoever has been given to the petitioner before effecting the

recovery. The respondent have taken in writing from the petitioner that

her family pension will not be released till she exceeds to the recovery.

That being the factual position, any letter given contrary to the

entitlement under law cannot be enforced by the Bank so as to effect the

recovery from the petitioner. Consequently, on this account also that rules

of natural justice have not been followed before effecting the recovery,

the order of recovery cannot be sustained.

12. The present petition is allowed. The recovery being done

from the petitioner is set aside. Any recovery already made be refunded

back to the petitioner within a period of two months from the receipt of

copy of this order. The petitioner will be paid the family pension which

she is entitled for without there being any recovery done for the same.

29.11.2023                                        (HARSIMRAN SINGH SETHI)
ps-I                                                      JUDGE

Whether speaking/reasoned                     :      Yes/No
Whether reportable                            :      Yes/No


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