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2015 DIGILAW 353 (RAJ)

Ganpat Mal Surana v. JVVNL

2015-02-06

SANDEEP MEHTA

body2015
ORDER : Sandeep Mehta, J. By way of the instant writ petition, the petitioner assails the action of the respondents in recovering a sum of Rs.79,420/- form his retiral benefits 2. Facts in brief are that the petitioner was employed in the respondent JWNL and superannuated on 31.7.2011. It is claimed that to the utter surprise of the petitioner, while issuing the PPO to the petitioner, the respondents deducted a sum of Rs.79,420/-from the gratuity amount without any notice or intimation. The petitioner submitted representations as well as a legal notice to the respondent authorities against their illegal and arbitrary action, however the representations and the prayers to cancel and reverse the recovery effected from the petitioner's retiral benefits met deaf ears and hence, the petitioner has approached this Court by way of the instant writ petition assailing the action of the respondents in deducting the sum of Rs.79,420/- from his retiral benefits. 3. The respondents have filed a reply to the writ petition claiming that the amount of Rs.79,420/- was deducted from the petitioner's retiral benefits because the petitioner had been given inadvertent benefits of increment from a wrong date as well as leave without pay beyond his entitlement. The excess amount which was paid inadvertently to the petitioner was rightfully deducted from his retiral benefits. It is specifically mentioned in the reply that due to a bona fide mistake committed by the respondents and wrong fixation of the pay, the annual increment which fell due to the petitioner from 2.4.1983, was released from 1.4.1982 contrary to the service rules and when the bona fide mistake come to light, the same was rectified and recovery effected. 4. Shri Chanda, learned counsel for the petitioner submits that the recovery which was effected from the retiral benefits of the petitioner is grossly illegal and arbitrary. The recovery as effected without giving any notice or opportunity of hearing and thus, deserves to be quashed. 5. Per contra, Shri Kalla learned counsel appearing for the respondents attempted to support the action of the respondents in effecting recovery, stating that excess amount was paid to the petitioner because of a bona fide mistake in applying the date of admissibility of increment to the petitioner and rectification of such mistake is permissible whenever the same was realized. 6. I have considered the arguments and have gone through the material available on record. 6. I have considered the arguments and have gone through the material available on record. It is not in dispute that the petitioner was in Class-IV service of the respondent-corporation being a Helper. The recovery effected from the retiral benefits of the petitioner was for the excess payment made to the petitioner, which was not on account of any misrepresentation or fraud committed by him. It is admitted in the reply that the excess amount was paid because of the inadvertent mistake of the respondents themselves. Thus, the controversy involved in the case at hand is squarely covered by the ratio of the judgment rendered by the Honble Supreme Court in the case of State of Punjab & Ors. v. Rafiq Masih (White Washer) etc. passed in Civil Appeal No. 11527/2014 decided on 18.12.2014. Para 12 of the said judgment is quoted here-in-below for the sake of convenience:- "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 19 page 20 that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarize the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-Ill 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 employers right to recover." 7. The petitioners case is covered by condition No.1, 2 and 3 of the said judgment and as such, recovery made from the retiral benefits of the petitioner is not permissible. The petitioners case is covered by condition No.1, 2 and 3 of the said judgment and as such, recovery made from the retiral benefits of the petitioner is not permissible. Furthermore, as per the Pension Rules, 1996, recovery from the retiral benefits of an employee can only be effected if the employee is held guilty of misconduct after conducting departmental enquiry. There is no allegation of the respondents that the amount was recovered on account of any misconduct committed by the petitioner. Thus, the respondents were not entitled to effect the recovery from retiral dues of the petitioner. 8. As a result, the writ petition deserves to be and is hereby allowed. The action of the respondents in effecting recovery of a sum of Rs.79,420/- from the retiral benefits of the petitioner is hereby quashed and set aside. The said amount shall be reimbursed to the petitioner forthwith and not later than two months from the date of this order alongwith an interest @ 9% per annum from the date, the recovery was effected i.e. 29.9.2011. If the payment is not made within the aforesaid period of two months, the interest shall stand enhanced to 12% per annum. No cost.