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2015 DIGILAW 494 (UTT)

CHETNA ANAND v. UNIVERSITY GRANT COMMISSION

2015-10-09

SUDHANSHU DHULIA

body2015
JUDGMENT : Hon’ble Sudhanshu Dhulia, J. (Oral) 1. Mr. Bhuwan Bhatt, Advocate present for the petitioner. 2. Mr. Vikas Pande, Advocate present for the respondent No.1. 3. Mr. Arvind Vashisth, Senior Advocate holding brief of Ms. Monika Pant, Advocate present for the respondent Nos.2 & 3. 4. Brief facts of the case are that the husband of the petitioner was a class III employee in Gurukul Kangri Vishav Vidhyalaya, Haridwar which is a deemed University under the provisions of University Grant Commission Act. 5. Her husband Mr. Nand Gopal Anand reached the age of superannuation and retired from his services on 31.07.1998. He continued to get pension till 17.03.2003. When he passed away, the petitioner being his widow was given family pension, which was her entitlement subsequent to the death of her husband. This pension was fixed by the order of University authorities in the year 2003 on their own and has been continued to be given to the petitioner till 15.07.2015. Thereafter, an order was passed by the University on 12.03.2015 stating therein that due to miscalculation enhanced pension has been given to her. Consequently for the period of almost 15 years, the recovery is being made which amounts to Rs. 3,26,702/-. This order has been challenged by the petitioner by filing the present writ petition. 6. Petitioner is the widow of the deceased employee and to add her hardship she has now been diagnosed as cancer patient, the certificate to this effect has also been annexed by the petitioner, which certifies that petitioner has Breast cancer. 7. It is not the case of University that the petitioner was given enhanced family pension for which she was not entitled due to any misrepresentation or fraud on the part of the petitioner. The mistake in calculating or fixing family pension of the petitioner is solely on the part of the University authorities which has also been admitted by learned counsel for the University. 8. Ordinarily, in such cases, even if enhanced pension has been given to the employee, or such as in the present case to the widow of deceased employee, where there is no misrepresentation or fraud on the part of the employee yet such enhanced amount once deducted has to be returned. 8. Ordinarily, in such cases, even if enhanced pension has been given to the employee, or such as in the present case to the widow of deceased employee, where there is no misrepresentation or fraud on the part of the employee yet such enhanced amount once deducted has to be returned. The only exception would be cases where the return of this amount would entail undue hardship on an employee or spouse of deceased employee as in that case it would be iniquitous and unjust. Whether this case falls in that exception has to be seen. 9. Learned counsel for the petitioner heavily relies upon the decision of Hon’ble Apex court passed in State of Punjab v. Rafiq Masih (White Washer) and others reported in (2015)4 SCC 334 wherein Hon’ble Apex Court in such similar matters exactly the matter which is at hand before this Court (referring to all the previous decisions of the Supreme Court in all matters) has concluded “that orders passed by the employer seeking recovery of monetary benefits wrongly extended to the employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer’s right to recover. In other words, an interference would be called for, only in such cases where, it would be iniquitous to recover the payment made”. 10. Hon’ble Apex Court thereafter, gave certain illustrations as well would be in the nature of exception where an interference is called for and recovery has to be interfered with. This aspect has been discussed in paragraph no.18 of the above referred judgment which reproduced as below :- “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. (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.” 11. Considering the fact that petitioner is a widow of deceased employee who is presently 67 years of age and is already battling cancer and she is in need of funds in order to get a proper treatment of the disease, there is absolutely no doubt in the mind of this Court that the recovery being made by the University from the petitioner which is presently a huge amount i.e. Rs.3,26,702/- would entail an extreme hardship on the petitioner which would be iniquitous and unjust. 12. In view thereof, an interference is called for. The writ petition succeeds and order dated 12.03.2015 so far it calls for the recovery of Rs.3,26,702/- is hereby quashed. 13. However, it is made clear that since there has been mistake on the part of University in calculating the amount, the mistake which is admitted on the part of the University authority as well, in future (i.e. from the date of this order) or since 12.03.2015, if already implemented the family pension which shall be given to the petitioner would be re-fixed, at the correct rate.