Recoveries from retired employees due to employer's pay fixation errors are impermissible, and coercion negates voluntary consent.

ORDER :

1. The present special appeal has been preferred claiming the following relief:

“It is, therefore, humbly prayed that this special appeal may kindly be allowed and the order dated 06.05.2024 passed by the Hon’ble Single Judge in S.B. Civil Writ Petition No. 3796/2020 titled Chatra Gameti Vs. Ajmer Vidyut Vitran Nigam Ltd. & Ors. may kindly be quased and set aside and the writ petition filed by the petitioner may kindly be allowed as prayed.

Such other order as your lordship deems fit and necessary may also be passed by the Hon’ble Court in favour of the appellant.”

2. Brief facts leading to the present controversy are that the appellant, after serving the respondent–department for several decades with an undisputed service record, superannuated on 30.06.2016. Prior to the release of his pensionary benefits, the respondents issued a communication dated 18.04.2016 alleging excess payment on account of erroneous pay fixation and directed recovery of a sum of Rs. 78,454/-. The appellant, being a low-paid retiring employee dependent upon pension for subsistence, deposited the amount on 05.05.2016 under compulsion.

2.1. Subsequently, upon becoming aware of the legal position governing such recoveries from retired employees, the appellant challenged the recovery by filing S.B. Civil Writ Petition No. 3796/2020, which came to be dismissed by the learned Single Judge vide order dated 06.05.2024 on grounds of delay and acquiescence. Aggrieved thereby, the appellant has preferred the present Special Appeal.

3. Learned counsel for the appellant submits that the recovery of Rs. 78,454/- from the appellant, a low-paid employee who had already superannuated on 30.06.2016, was wholly illegal, arbitrary, and contrary to the settled principles laid down by the Hon’ble Supreme Court in State of Punjab v. Rafiq Masih (White Washer), (2015) 4 SCC 334 . It was urged that the appellant neither misrepresented nor suppressed any fact at any stage of his service, and the alleged excess payment arose solely on account of the respondents’ own error in fixation of pay. Therefore, no recovery could have been made after retirement, much less by compelling the appellant to deposit the amount under threat of withholding his pension.

3.1. Learned counsel also submits that the appellant’s deposit of the amount on 05.05.2016 cannot be construed as voluntary acquiescence, as the appellant was made to understand that unless the amount was deposited, his pensionary benefits would not be released. Such action, it was argued, amounted to coercion and economic duress, rendering the so-called consent legally ineffective.

3.2. Learned counsel contends that the learned Single Judge erred in holding that the writ petition was barred by delay and acquiescence, as the recovery order itself was void, contrary to binding precedent, and violative of Articles 14 and 21 of the Constitution of India. It was emphasized that once the Hon’ble Supreme Court has categorically barred recoveries from retired employees, the question of delay cannot override the illegality of the action.

3.3. Reliance was also placed on the recent judgment of the Hon’ble Supreme Court in Jagdish Prasad Singh v. State of Bihar , Civil Appeal No. 1635 of 2013 decided on 08.08.2024, wherein it was held that recovery made years after retirement, without any misrepresentation by the employee, is grossly illegal and that such amounts must be refunded along with applicable interest.

3.4. On these submissions, it is prayed that the impugned order dated 06.05.2024 p