Recovery of excess salary from the widow of a deceased Class-III employee is impermissible under law, particularly when no fraud or misrepresentation occurred.

JUDGMENT :

Heard learned counsel for the petitioner and learned counsel for the State.

2. The present writ application has been filed for quashing the Rail District, Katihar District Order No. 1410 of 2016 passed by the respondent no. 3 contained in Memo No. 626 dated 09.12.2016 by which the petitioner was directed to deposit Rs.4,42,314/- in the office of Rail Police, Katihar which was allegedly excess paid to the deceased husband of the petitioner in the head of salary on account of 6th Pay Revision and further prayer has been made to the respondent authorities to refund the amount of Rs. 4,42,314/- with interest.

3. Learned counsel for the petitioner submits that the husband of the petitioner was in service and his salary was fixed by the respondent authorities themselves. Her husband was no where involved in fixation of his own salary. He further submits that her husband was died in course of discharging his duties on 12.07.2016. After his death, the petitioner has submitted application form for payment of all kind of death-cum-retiral dues of her husband, then only order impugned contained in Memo No. 626 dated 09.12.2016 has been served in which direction was made to the petitioner to deposit the amount of Rs.4,42,314/- in the Rail Police Office, Katihar which was allegedly paid in excess to the husband of the petitioner in the head of salary on the basis of wrong fixation of pay in his lifetime.

4. Learned counsel for the petitioner further submits that the respondent no. 3 has categorically informed to the petitioner that unless and until the said amount shall not be refunded, the death-cum-retiral dues could not be considered. As such, the petitioner have got no option. So, she arranged money from her relatives and deposited the cheque of Rs.4,42,314/- in the name of respondent no. 3 on 30.12.2017. He further submits that it is a well known decision of the Hon’ble Supreme Court of India in State of Punjab & Ors. Vs. Rafiq Masih & Ors. reported in 2015(4) SCC 334 that recoveries by the employers would be impermissible in law from the employee belonging to Class-III and Class-IV services or Group C-and Group-D services. He further submits that recovery from retired employee or the employees who are due to retire within one year of order of recovery shall also not be made.

5. Learned counsel for the petitioner further submits that admittedly, here in the present case, husband of the petitioner was Class-III employee, who has alleged to receive excess amount towards salary, for which he has neither committed any fraud or misrepresented anyone. He further submits that the employee who has taken or received excessive payment is no more and, therefore, recovery from the widow is absolutely illegal and not be sustainable in the eye of law, and it is due to this reason, the writ petition has been filed with prayer to quash the said letter for recovery, as well as direction to refund the same amount which has been received from the petitioner by the respondent no. 3 in coercion.

6. In the light of the above facts and circumstances, learned counsel for the petitioner has filed the writ petition and prays to allow the same.

7. Learned counsel for the State on the other hand opposes the writ petition and submits that from the order impugned, it becomes crystal clear that there was no direction for recovery of the said amount. He further submits that the petitioner herself decided to return the said excessive money received by her husband to respondent no. 3 and for which she has prepared a cheque and deposit the same in the official account through respondent no. 3. He further submits that Section 115 of the Indian Evidence Act which is clearly applicable in the present case and paid amount cannot be recovered in the light of applicability of doctrine of estoppel. He further submits that the State has not put pressure or made any recovery but the petitioner herself opted to return the said amount, hence the judgment of State of Punjab &