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Gujarat High Court · body

2017 DIGILAW 1227 (GUJ)

Motibhai Maganbhai Vankar v. State of Gujarat

2017-07-04

MOHINDER PAL

body2017
JUDGMENT : MOHINDER PAL, J. 1. Through this petition, the petitioner under Articles 14, 16 and 21 of the Constitution of India has challenged the action of the respondents effecting recovery regarding the excess payment made to the petitioner. The recovery of excess payment alleged to have been made to the petitioner beyond a period of ten years from the date of his retirement. 2. Brief facts leading to filing of this petition are that the petitioner retired from the service in Narmada Project Canal Circle No. 5 on 31.07.2005 after putting, in all, service of about 34 years as a Class-III employee (Junior Clear).The entire service record of the petitioner was clear and the computation and petitioner's pension which was to be granted to him were already completed before his actual retirement. It is the case of the petitioner that on 16.11.2013, the respondents wrote to the bank where pension of the petitioner was being deposited that an amount Rs. 79,990/- has been paid in excess to the petitioner and the same be deducted from his pension. Then accordingly, the pension of the petitioner was reduced to an amount of Rs. 4,675/- in place of Rs. 14,801/-. Aggrieved from the action of the respondents, the petitioner has approached this Court by way of this petition. 3. The respondents have contested this petition by filing an affidavit-in-reply, wherein, it has been stated that the petitioner was given correct pension from 01.08.2005 to 31.05.2009 Thereafter, the Director of Pension and Provident Fund has revised the pension on 19.05.2009 at Rs. 3,953/- with effect from 01.08.2005, which was inclusive of dearness pension of Rs. 1,318/-. It is further the case of the respondents that as per the Pension Rules, the basic pension was Rs. 2,635/- but through oversight further revision of pension was made according to 6th Pay Commission on total pension (Pension + Dearness Pension) i.e Rs. 3,953/- instead of basic pension of Rs. 2635/-, which has resulted in over payment. Finally, learned Assistant Government Pleader has prayed for dismissal of this petition. 4. Learned counsel for the petitioner has submitted that the recovery has been sought from the petitioner after a gap of about ten years from the date of retirement. The pension was paid to the petitioner without any fault on part of the petitioner. Finally, learned Assistant Government Pleader has prayed for dismissal of this petition. 4. Learned counsel for the petitioner has submitted that the recovery has been sought from the petitioner after a gap of about ten years from the date of retirement. The pension was paid to the petitioner without any fault on part of the petitioner. As the petitioner has retired from Class-III service, it will be hard upon the petitioner to pay back the amount to the respondents. On the other hand, this contention has been opposed by the learned Assistant Government Pleader while referring to the decision of the Apex Court passed in case of Jagdev Singh v. High Court of Punjab and Haryana (2016) 14 SCC 267 . 5. This Court has considered the submissions of both the sides. The petitioner is aggrieved from the action of the respondents, vide which, the recovery of alleged excess amount of Rs. 2,35,423/- has been effected from his pension account. As a result of this recovery, the petitioner is getting pension of Rs. 4,675/- in place of Rs. 14,801/-. 6. It is not in dispute that the petitioner has retired from the post of Junior Clerk which is a Class-III post. It is also not in dispute that the retirement of the petitioner has taken place on 31.07.2005 and recovery has been effected regarding the excess payment made to the petitioner from May, 2009. The order for such recovery has been passed on 16.11.2013, meaning thereby, that such order has been passed after a gap of five years. The Hon'ble Supreme Court while dealing with the recovery concerning Class-III employee in the case of State of Punjab v. Rafiq Masih (2015) 4 SCC 334 in paragraph No. 12 has held as under: “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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein, recoveries by the employees would be impermissible in law: (i) Recovery from employees belonging to 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 bee 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 highest 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.” 7. The aforementioned decision of the Apex Court seems to be fully applicable to the case on hand. The petitioner of this case has also retired from Class-III post and recovery has been sought after ten years of his retirement and order regarding recovery has been passed after five years of making the payment. Learned Assistant Government Pleader has opposed this petition while relying upon the case of Jagdev Singh v. High Court of Punjab and Haryana (Supra). The law contended in this judgment cannot be disputed, however, the facts of this case are entirely different. It will be relevant to note that in above cited case, the person from whom recovery was sought was a Judicial Officer who seems to have been compulsorily retired. Even at the time of making payment, an undertaking was given by the said officer that an excess payment, if any, found to have been made shall be refunded to the Government either by adjusting further payment dues or otherwise. The recovery in the case of the present petitioner has been effected after ten years of his retirement. 8. In view of the foregoing discussion, this petition is allowed. The respondents are directed to refund an amount of recovery effected from the petitioner. Necessary formalities shall be completed within a period of one month from the date of receipt of this order. Learned counsel for the petitioner has prayed for interest on the refund amount. However, this Court in its discretion, declining the prayer for payment of interest on refund. Direct service for respondent Nos. 2 and 3 is permitted.