Joydeb Goldar vs State Of West Bengal And Others

Rajasekhar Mantha, J

The petitioner is aggrieved by the fact that the pension payment order dated 9th December, 2015 was issued to him purportedly to effect recovery of excess payment made to him while he was in service. Admittedly, the petitioner retired from service as an Assistant Teacher in April, 2012.

Learned advocate for the petitioner has placed the decision of the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 334 at paragraph 18.

In Paragraph 18, the Apex Court has laid down 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 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."

The petitioner is covered under Clause 2 of the aforesaid judgement as excess payment during service cannot be recovered from retired employees.

In those circumstances, the respondent no. 4 shall within a period of one month from the date of receipt of a copy of this order note the above and pass an amended and fresh PPO removing the deduction order in favour of the petitioner in accordance with law.

The Treasury Officer may commence disbursement in terms of the aforesaid Pension Payment Order to be issued afresh within a period of 15 days from the date of decision as directed herein above by the respondent no. 4.

With the aforesaid directions, the writ petition is disposed of.

No order as to costs.

Photostat certified copy of this order, if applied for, be given to the parties on urgent basis.