Bijoy Kerketta vs State Of Jharkhand And Ors

Heard Mr. Anil Kumar Sinha, learned counsel for the petitioner and Md. Sahid, learned counsel for the respondent-RIMS.

The petitioner has preferred this writ petition for quashing letter dated 29.04.2010 whereby it has been directed to deduct the excess amount of Rs. 28,260/- from the pension of the petitioner.

Learned counsel for the petitioner submitted that the petitioner was appointed as Ward Servant by terms of letter dated 01.10.1965 and retired from service on 31.10.2006. It has further been submitted that earlier the petitioner had filed a writ petition being W.P. (S) No. 2934 of 2010 and pursuant to direction passed in that case, his pension was fixed.

But, the respondent-RIMS by issuance of impugned order dated 29.04.2010 directed to recover excess amount of Rs. 28,260/- from the pension of the petitioner. Pursuant to that revised pension has been paid. In this regard, it has been submitted that there is no misrepresentation on the part of the petitioner and no fraud has been played by the petitioner to get the enhanced pension; as such the impugned order of recovery is liable to be quashed.

On the other hand, learned counsel for the respondent-RIMS submitted that after the retirement of the petitioner, pension of the petitioner was finally fixed by the Finance Department, Government of Jharkhand and it was found that the petitioner has drawn an amount of Rs. 28,260/- over and above, he was entitled to draw. Accordingly, the impugned order was passed for recovery of the same.

Having heard learned counsel for the parties, it appears that the pension of the petitioner was fixed by the authorities, for which, the petitioner cannot be held guilty. Further, it is nowhere case of the respondents that there is any misrepresentation on the part of the petitioner; as such the impugned order of recovery is liable to be quashed and set aside.

View of this Court gets fortified by the decision rendered in case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and Ors. as reported in (2015) 4 SCC 334 wherein the Hon'ble Court has been pleased to enumerate the instances relating to recovery of excess payment without fault of the recipient. The relevant paragraph 16 and 18 of the said judgment is quoted herein below:

"16.This Court in Syed Abdul Qadir V. State of Bihar held as follows:

"59.undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. ..........."

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."

For the reasons aforesaid and law laid down by Hon'ble Apex Court in above-referred case, the impugned order of recovery dated 29.04.2010 is quashed. The respondent no. 2 is directed to refund the amount in question forthwith.

Accordingly, the writ petition stands allowed.