Vasdev Singh vs Pepsu Road Transport Corporation And ...
2024 Latest Caselaw 16078 P&H

Punjab-Haryana High Court

Vasdev Singh vs Pepsu Road Transport Corporation And ... on 3 September, 2024

                                   Neutral Citation No:=2024:PHHC:114872




        IN THE HIGH COURT OF PUNJAB & HARYANA
                    AT CHANDIGARH
 250
                                             CWP-2605-2022
                                             Date of decision : 03.09.2024

Vasdev Singh                                                   .....Petitioner

                                  Versus

The Pepsu Road Transport Corporation and another             .....Respondents

CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR

Present :    None for the petitioner.

             Mr. Anupam Singla, Advocate for the respondents.

NAMIT KUMAR, J. (Oral)

1. The petitioner has filed the instant writ petition under

Articles 226 and 227 of the Constitution of India, seeking a writ of

certiorari, quashing the order dated 03.12.2015 (Annexure P-3),

whereby recovery of an amount of Rs.2,17,152/- has been effected from

the retiral benefits of the petitioner and order dated 30.09.2021

(Annexure P-5), whereby the claim of the petitioner raised in legal

notice dated 27.01.2017 has been rejected by the respondents. Further

seeking a writ of mandamus, directing the respondents to refund the

abovesaid amount deducted from the retiral benefits of the petitioner,

along with interest.

2. Brief facts of the case, as have been pleaded in the present

petition, are that the petitioner was appointed as Conductor in the Pepsu

Road Transport Corporation on 20.04.1979. He has retired as Sub-

Inspector on attaining the age of superannuation on 12.08.2015. After

the retirement of the petitioner, a recovery of Rs.2,17,152/-, being

excess payment made to the petitioner, was effected from his retiral

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benefits by the respondents-Corporation vide impugned order dated

03.12.2015 without giving any notice or granting any personal hearing

to the petitioner. The petitioner served a legal notice dated 27.01.2017 to

the Corporation to refund the abovesaid amount deducted from his

retiral benefits but no action was taken on the same. Thereafter, the

petitioner approached this Court by filing CWP No.11669 of 2017 titled

as 'Vasdev Singh Vs. The Pepsu Road Transport Corporation and

another' for issuance of directions to the respondents to refund the

amount deducted from his retiral benefits. The said writ petition was

disposed of by this Court vide order dated 25.05.2017, with the

directions to the respondents to decide the legal notice dated

27.01.2017, served by the petitioner upon the respondents, by passing a

speaking order, in accordance with law, within a period of three months

from the date of receipt of certified copy of the order. Despite the

abovesaid directions issued by this Court vide order dated 27.01.2017,

no action was taken by the respondents on the legal notice served by the

petitioner. On which, the petitioner filed a contempt petition bearing

COCP No.865 of 2018 before this Court. During the pendency of the

said contempt petition, the respondent-Corporation has passed order

dated 30.09.2021 rejecting the claim of the petitioner raised in the legal

notice dated 27.01.2017. Hence, the present petition.

3. Pursuant to notice of motion, short reply on behalf of

the respondents has been filed. In the said reply it has been stated as

under :-

" xx xx xx xx xx

2. That the petitioner was appointed as conductor in the

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respondent corporation on 20.04.1979 and he had retired as sub inspector after attaining the age of superannuation on 12.08.2015. After the retirement of the petitioner from the services of the respondent corporation, the entire service record of the petitioner was examined for the purpose of computation of his retiral and pensionary benefits. During the examination, it was found that the pay of the petitioner was wrongly fixed due to which he was drawing excess amount of Rs.2,17,152/-. Accordingly, vide order dated 10.11.2015, the pay of the petitioner was refixed and vide order dated 03.12.2015 (Annexure P-3) the excess amount drawn by the petitioner has been recovered from the amount of gratuity.

xx xx xx xx xx"

4. None has put in appearance on behalf of the petitioner.

5. On the other hand, learned counsel for respondents has

justified the passing of impugned order by stating that recovery was

made against the petitioner as due to his wrong pay fixation, he has been

paid excess amount and the same was liable to be recovered.

6. I have heard learned counsel for the respondents and

perused the relevant documents.

7. Admittedly, the petitioner has retired from service on

attaining the age of superannuation on 12.08.2015 and after his

retirement an amount of Rs.2,17,152/- has been deducted from his

retiral benefits vide impugned order dated 03.12.2015 passed by the

respondents. The stand taken by the respondents is that when the entire

service record of the petitioner was examined for the purpose of

computation of his retiral and pensionary benefits, it was found that the

pay of the petitioner was wrongly fixed due to which he was paid excess

amount of Rs.2.17,152/-. Thereafter, the pay of the petitioner was

refixed vide order dated 10.11.2015 and the alleged recovery was

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effected from the retiral benefits of the petitioner vide order dated

03.12.2015.

8. Even if an excess amount on the basis of wrong fixation of

pay was paid to the petitioner, the same cannot be recovered from him

after his retirement. The action of the respondents is totally contrary to

the law laid down by the Hon'ble Supreme Court in State of Punjab Vs.

Rafiq Masih (White Washer) and others : 2015(1) S.C.T. 195. The

relevant portion of the aforesaid judgment is reproduced 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."

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9. The facts and circumstances of the present case suggests

that it is not the case of the respondents that it was due to some fraud or

misrepresentation of the petitioner, who was working against Class III

post, that he was granted excess payment but it was granted by the

respondents-Corporation on their own.

10. Moreover, the alleged recovery has been effected by the

respondents in violation of the principles of natural justice as neither

any show cause notice was issued to the petitioner nor he was granted

an opportunity of personal hearing.

11. In view of the above, this Court is of the considered view

that the case of the present petitioner is squarely covered by Clauses (i),

and (ii) of para 12 of the judgment of Hon'ble Supreme Court passed in

Rafiq Masih (White Washer) and others case (Supra).

12. Consequently, the present petition is allowed and the

impugned order dated 03.12.2015, whereby recovery of an amount of

Rs.2,17,152/- has been effected from the retiral benefits of the petitioner

is quashed and set aside. The respondents are directed to refund the

abovesaid amount, deducted from retiral benefits, to the petitioner,

within a period of 02 months from the date of receipt of certified copy

of this order, along with interest @ 6% per annum from the date the

same was effected from the petitioner till its actual payment.

                                                      (NAMIT KUMAR)
03.09.2024                                                JUDGE
Kothiyal

             Whether Speaking/reasoned         Yes/No
             Whether Reportable                Yes/No


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