Bee Pasha vs Prl.Secy., Home Dept., Hyd., 2 ...
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    THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI

                WRIT PETITION No.6290 of 2017

ORDER:

This writ petition is filed seeking the following relief:-

"This Hon'ble Court may be pleased to issue a order or direction more in the nature of writ of mandamus declaring the action of the 2nd Respondent in issuing the impugned Letter Lr.No.A5/APPO/CG//6365/2016,Dt:18-04-2016, same was communicated through RTI Act vide Lr.Rc.No.A5/APPO/ CG//6365/2016, Dt:28-05-2016, is illegal, arbitrary and violative of article 14,16 & 21 of the constitution of India and set-aside the same and consequently direct the 2nd respondent to pay the recovered amount from the month of March, 2016, forthwith with interest and to pass any such order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."

Heard the learned counsel for the petitioner and the

learned Government Pleader for Services-I.

It is the case of the petitioner that her husband, while

working as an Armed Reserve Sub-Inspector of Police, expired

on 10.02.1999 and thereafter, pensionery benefits and family

pension were paid to her. Her grievance is that the respondents

have issued impugned proceedings dated 18.04.2016 and

28.05.2016 contending that an amount of Rs.6,00,181/- was

erroneously paid in her pension account and therefore it is

proposed to recover the said amount from the pensionery

benefits of the deceased petitioner's husband and the

petitioner's family pension.

Learned counsel for the petitioner had contended that the

issue raised in the present case is that the respondents cannot

recover the amount from the pensionery benefits, that too after

nearly seventeen years from the date of death of the petitioner's

husband, and the same was considered by the Hon'ble Supreme

Court in the case of State of Punjab and others vs. Rafiq

Masih (White Washer) etc. (Civil Appeal No.11527 of 2014

decided on 18.12.2014), wherein it was held 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."

13. We are informed by the learned counsel representing the appellant-State of Punjab, that all the cases in this bunch of appeals, would undisputedly fall within the first four categories delineated hereinabove. In the appeals referred to above, therefore, the impugned orders passed by the High Court of Punjab and Haryana (quashing the order of recovery), shall be deemed to have been upheld, for the reasons recorded above."

Therefore, the learned counsel had contended that appropriate

orders may be passed in the writ petition by setting the

impugned proceedings dated 18.04.2016 and 28.05.2016.

Learned Government Pleader for Services-I had contended

that an amount of Rs.6,00,181/- was erroneously paid in favour

of the petitioner towards family pension and the authorities

have every right to recover the erroneously paid amount.

Therefore, there are no merits in the writ petition and the same

is liable to be dismissed.

This Court, having considered the rival submissions made

by the learned counsel for the parties, is of the view that the

issue raised in the present writ petition is squarely covered by

the judgment delivered by the Hon'ble Supreme Court in the

case of State of Punjab and others (supra) and the employer

cannot recover any amount from the pensionery benefits.

Therefore, the impugned proceedings are liable to be set aside

and are accordingly set aside.

The writ petition is accordingly allowed.

Pending miscellaneous applications, if any, shall stand

closed. There shall be no order as to costs.

_______________________ ABHINAND KUMAR SHAVILI, J

30.06.2022 JSU