Punjab-Haryana High Court
Lal Sngh vs State Of Punjab And Another on 13 November, 2024
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2024:PHHC:148582
292 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-28144
28144-2023 (O&M)
Date of Decision : 13
13-11-2024
LAL SNGH ........Petitioner
VERSUS
STATE OF PUNJAB AND ANOTHER ........Respondent(s)
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr.
r. Sunny Singla, Advocate with
Ms. Riti Aggarwal, Advocate for the petitioner.
Ms. Shruti, AAG Punjab.
***
HARSIMRAN SINGH SETHI, J. (Oral)
Despite taking two adjournments, no reply has been filed by
learned
rned counsel for the respondent-State.
respondent
The present case relates to the recovery done from the retiral
benefits of the petitioner after his retirement hence, no further opportun
opportunity
ity is
required to be given for filing reply as, the challenge to the order dated
ated
04.10.2023 imposing recovery is based upon the judgement 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
195.,., as well as on the ground that no
notice was given to the petitioner before ordering recovery from the retiral
benefits of the petitioner.
Learned counsel for the petitioner submits that the petitioner
retired on attaining the age of superannuation on 31.10.2022 and after his
1 of 5
Neutral Citation No:=2024:PHHC:148582
CWP-28144-2023 (O&M) -2-
retirement, the impugned order of recovery has been passed on 04.10.2023,
wherein a sum of Rs.70,588/- has been recovered from the payment of the
Leave Encashment, which is causing prejudice to the petitioner hence, the
same is liable to be set aside.
Learned counsel for the respondents argues that once, the
petitioner was paid more than his entitlement, the recovery has rightly been
done from the payment of the Leave Encashment.
I have heard learned counsel for the parties and have gone
through the records of the present case with their able assistance.
The question of law with regard to the recovery from a retired
employee has already been settled by 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, according to which, no recovery can be done from a class 3 and
class 4 employee and that too after the retirement. Further, as per the
judgment in Rafiq Masih's case (supra), no recovery can be done after
withdrawing a benefit which an employee continue to get for a period of five
years before the same was withdrawn. The relevant paragraph of the said
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).
2 of 5
Neutral Citation No:=2024:PHHC:148582
CWP-28144-2023 (O&M) -3-
(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."
From the perusal of the above reproduction, it is clear that no
recovery can be done from a Class-III of Class-IV employee and in the
present case, no recovery can be done from the petitioner after his retirement
hence, the recovery of the amount of Rs.70,588/- that has been done after the
retirement of the petitioner which is clear from the impugned order itself, is
contrary to the settled principle of law and cannot be allowed.
Even otherwise, a bare perusal of the impugned order dated
04.10.2023 (Annexure P-1) would show that before affecting recovery from
the pensionary benefits of the petitioner, no notice of the said recovery was
given so as to allow the petitioner to raise objections qua the said proposed
recovery.
In the absence of any opportunity given to the petitioner, the
recovery has been done by violating the principles of natural justice which
itself is a ground to set aside the order of recovery.
3 of 5
Neutral Citation No:=2024:PHHC:148582
CWP-28144-2023 (O&M) -4-
Further, in the impugned order dated 04.10.2023 (Annexure P-
1) nothing has been mentioned that the excess amount was taken by the
petitioner by misleading. Once, the respondents have not attributed any
misappropriation on the part of the petitioner so as to claim the excess
amount, no recovery could have been done from the retiral benefits of the
petitioner.
The Hon'ble Supreme Court of India in Civil Appeal No.7115
of 2010 titled as Thomas Daniel versus State of Kerala and others, decided
on 02.05.2022, has held that where an employee was not at fault with regard
to the extension of benefit and there is no misrepresentation on behalf of the
employee concerned to get the emoluments beyond his/her entitlement, the
recovery cannot be done from employee concerned. The relevant paragraph
of the said 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
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
4 of 5
Neutral Citation No:=2024:PHHC:148582
CWP-28144-2023 (O&M) -5-
discretion, the courts may on the facts and circumstances of
any particular case order for recovery of amount paid in
excess."
Keeping in view the above, the recovery of Rs.70,588/- which
has been done from the Leave Encashment of the petitioner is contrary to the
settled principle of law and the same cannot be sustained and the said order
of recovery of the excess amount is accordingly set aside.
The respondents are directed to release the said amount
recovered in favour of the petitioner within a period of 8 weeks from the
receipt of copy of this order.
The present writ petition is allowed in above terms.
Pending application, if any, also stands disposed of.
13-11-2024 (HARSIMRAN SINGH SETHI)
Sapna Goyal
JUDGE
NOTE: Whether speaking: YES/NO
Whether reportable: YES/NO
5 of 5
