The impermissibility of recovery in certain situations and the iniquitous nature of recovery after a long period.

JUDGMENT :

ANIRUDDHA ROY, J.

Facts:

1. The husband of the petitioner was an Assistant Teacher who died on April 2, 1998 after rendering more than 29 years of service. After demise of the husband of the petitioner the necessary Pension Payment Order (PPO) was issued on March 12, 2002 on account of the family pension payable to the petitioner.

2. The complaint in the writ petition is that, the petitioner being the widow of a State employee has received family pension till December 31, 2017. Thereafter on and from January 1, 2018 the family pension was not paid to the petitioner on the plea that during the period June 1, 2009 till December 31, 2017 the petitioner had received family pension at an enhanced rate and the excess paid to her, the petitioner was not eligible to receive as family pension in accordance with law. However, it is an admitted position that, on and from January 1, 2018 the petitioner has not received any family pension whatsoever.

Submissions:

3. Drawing attention to Annexure P-5 at page 44 which is a communication dated April 11, 2019 issued by the Jurisdictional Treasury Officer, Mr. Kumar Jyoti Tewari, learned counsel for the petitioner submits that, a sum of Rs. 1,45,764/- has already been recovered on account of alleged excess payment and still there was an alleged overdrawal amount of Rs. 4,70,986/- which would be deducted as Rs. 5,000/- per month till the entire amount is recovered.

4. Mr. Tewari further submits that, on and from January 1, 2018 the eligibility of the petitioner to receive family pension per month was slightly more than Rs. 15,000/- where as the petitioner has been receiving slightly more than Rs. 10,000/- since April, 2019. The petitioner claimed the refund of the recovered amount on the ground of alleged overdrawn to the extent of Rs. 6,16,750/- and her regular family pension payable to her since January 1, 2018 to which petitioner is eligible to receive strictly in accordance with law.

5. Mr. Pinaki Dhole, learned State counsel submits that, there is no question of refunding any amount which already has been recovered from the petitioner’s account as overdrawn by the petitioner. He submits that, the recovery was made by making lesser payment to the petitioner from her eligible quantum by Rs. 5,000/- per month and no amount was recovered from her bank account. Drawing attention to the pension payment order, Annexure P-1 at page 27 to the writ petition Mr. Dhole submits that on and from January 8, 2018 the petitioner will be eligible to receive basic family pension @ Rs. 2,400/-.

6. Mr. Pinaki Dhole further submits that, the petitioner did not raise any objection whatsoever and accepted the recovery and the mode of recovery of the excess amount paid to the petitioner. Therefore, at this belated stage the petitioner cannot maintain this writ petition.

7. Mr. Kumar Jyoti Tewari, learned advocate submits that, since there was no step for recovery taken against the deceased husband of the petitioner, who was the employee of the State, before one year of his retirement, no step for recovery should have been taken and is maintainable against the widow of the State employee being the petitioner herein from her family pension. In as much as, he submits that, the excess amount of pension was paid to the petitioner more than five years of span. He further submits that, the petitioner being the widow her survival depends on this family pension. In this prevailing hard days of survival considering the market index, if this recovery is made, the same would be iniquitous and harsh against the petitioner. The petitioner then will suffer immense crisis and irreparable hardship. In support, learned counsel for the petitioner has relied upon a judgment In the matter of State of Punjab and Others vs. Rafiq Masih (White Washer) and Others, (2015) 4 SCC 334.

8. Further Mr. Tewari, submits that, considering the ratio laid down by the Hon’ble Supreme Court In the matter of Rafiq Masih (Supra) a Special Bench of this C