Recovery of excess amount without fault of recipient is impermissible, especially from retired employees or those due to retire.

JUDGMENT

1. The moot issue involved in both the above writ petitions is pertaining to non-release of pension despite the petitioner having superannuated on 31/07/2017 and further for quashing and setting aside the order impugned dated 29/05/2018 by which recovery to the tune of Rs.3,56,995/- has been ordered to be made from pension of the petitioner. Thus, both these writ petitions are being decided by this common order.

2. As per the petitioner, he joined services of the respondent- department on 01/02/1979. He was made semi-permanent on 01/04/1982 and then permanent on 01/02/1989. He was thereafter promoted on 01/04/1994 and was granted I and II Selection Scales on 16/04/1994 and 01/04/2000 respectively. He was superannuated as Driver on 31/07/2017.

3. It is contended that when his pensionery benefits were not released even after lapse of 9 months of superannuation, he filed above writ petition numbering 10528/2018 wherein notices were issued and soon thereafter vide order impugned dated 29/05/2018, recovery was ordered to be made to the tune of Rs.3,56,995/- from his pension stating that on re-fixation of pay, it was found that during the period from 01/04/2000 to 31/12/2016, excess salary to the tune of Rs.3,56,995/- was released to the petitioner and being aggrieved of the same, he filed the second writ petition numbering 12507/2018.

4. The first and foremost argument raised by learned counsel for the petitioner is that the petitioner is an uneducated person and the respondents themselves have fixed the pay of the petitioner and released him the due amount. There was no mistake on the part of the petitioner and whatever was released for the said period, he withdrew the same qua his salary and benefits. Pursuant to circulars issued from time to time and circular dated 24/03/2011, the work charge employees were regularized upon rendering 10 years of service and no excess payment had been released to the petitioner and the recovery order dated 29/05/2018 is bad on facts as well as law.

5. Learned counsel for the petitioner submitted that vide circular dated 20/04/2017, it is directed by the Secretary (Finance), Govt. of Raj. in Para 3 that any over payment cannot be continued to be recovered for an indefinite period and specially in the case of persons who are on the verge of retirement, no recovery should be initiated. Learned counsel placed reliance upon judgment of the Apex Court in State of Punjab & Ors. v. Rafiq Masih (White Washer) & Ors.: (2015) 4 SCC 334 wherein it has been observed that recovery in such matters is impermissible as the same caused hardship after lapse of a considerable period of time.

6. Per-contra, learned counsel for the respondents submitted that the recovery in the instant matter was justified as excess claim of Rs.3,56,995/- had been released to the petitioner for which he was not entitled.

7. Heard learned counsel for both the sides at length, perused record of the writ petition and considered the judgment cited at bar.

8. At the outset, on considering the judgment of the Apex Court in State of Punjab & Ors. (supra), it goes to show that the Apex Court has held that the recovery of amount paid in excess towards salary without fault of recipient is impermissible specially when the same was not on account of mistake committed by the employee and when the excess amount was not towards fraud or misrepresentation as well as when the recovery is from employees belonging to Class III & IV and from retired employees or employees are due to retire or where recovery from employees to whom excess payment has been made for a period in excess of five years before the order of recovery is issued etc.

9. In the light of the directions given by the Apex Court in State of Punjab & Ors.(supra) which are squarely applicable in the instant case, this Court is in agreement with the submissions made by learned counsel for the petitioner that the recovery proceedings initiated qua the petitioner were barred by delay and latch