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2025 DIGILAW 167 (JK)

Jabeen Kounsar v. Ut of J&K

2025-03-26

RAJNESH OSWAL

body2025
JUDGMENT : 1. With the consent of learned counsel for the parties, the instant petition is taken up for final disposal. 2. The petitioner is aggrieved of the action of respondent No.3 whereby he has ordered recovery of excess amount of family pension paid to the petitioner amounting to Rs.7,18,268/ and has further directed the Manager, J&K Bank, Branch Chanapora, to recover an amount of Rs.3,59,134/ at first instance from the family pension of the petitioner and rest in the instalments @ Rs. 7,500/ per month. 3. The sole contention of the petitioner is that the excess family pension was paid to her neither on account of any fraudulent act nor any misrepresentation on the part of the petitioner but was paid to her on account of fault of respondents No.1 to 3, as such, the said amount cannot be recovered from her. 4. The reply has been filed by respondent No.2 stating therein that the said respondent received the case of the petitioner for revision of pension under Government Order No.222-F and after scrutiny of the case, it was found that the petitioner was paid enhanced payment beyond 1 st July, 2013 whereas the petitioner was supposed to get the enhanced benefit for seven years but she continued to receive the same which was due to omission on the part of respondent No.3. When the same was brought to the notice of respondent No.3, he issued a communication to respondent No.4 pursuant to which action has been taken by him. 5. The respondent No.4 has filed the response stating therein that a communication was received from respondent No.3-Treasury Officer, Lal Mandi, Srinagar, with a direction to recover certain amount and pay the future amount as per the schedule mentioned in the communication, as such, respondent No.4 has no role in recovering or fixation of the pension of the petitioner. 6. Heard and perused the record. 7. This is an admitted case of the parties that the excess family pension has been received by the petitioner on account of omission on the part of respondent No.3 as the petitioner was to get enhanced benefit only for seven years but due to inadvertent omission of the respondent No.3 she continued to get the benefit beyond the said period and when the said fact was brought to the notice of respondent No.3, he issued communication to respondent No.4. 8. 8. So far as the recovery of excess amount of family pension paid to the petitioner is concerned, the same cannot be recovered from the petitioner, as the fault, if any, whether inadvertent or otherwise, was of respondent No.3 as the petitioner had no role in revision of her family pension and more so there are no allegations against her in respect of any fraud or misrepresentation. 9. The Supreme Court in the case of Daniel Thomas vs. State of Kerala, 2022 SCC OnLine SC 536, has held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. 10. In State of Punjab vs. Rafiq Masih (White Washer) & ors.), (2015) 4 SCC 334 , the Supreme Court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. The Court considered the situations of hardship caused to an employee, if he is directed to reimburse the employer. In the said case the Supreme Court held as under: “8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee’s right would outbalance, and therefore eclipse, the right of the employer to recover. xxx xxx xxx 18. In such a situation, the employee’s right would outbalance, and therefore eclipse, the right of the employer to recover. xxx xxx xxx 18. 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 employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the 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. So far as the fixation of family pension of the petitioner for an amount of Rs.15,363/ is concerned, the respondents No.1 to 3 are well within their right to refix the pension of the petitioner after the error was brought to their notice. 12. In view of above, the action of the respondent No.3 in directing the recovery of the excess family pension from the petitioner cannot be countenanced and, accordingly, the said direction issued by the respondent No.3 to respondent No.4 is quashed. However, the petitioner is held entitled to the family pension of Rs.15,363/ as refixed by the respondent No.3, after the error was rectified by respondent No.3.