Recovery of excess payment from retired employees and the impermissible situations for recovery.

JUDGMENT

(Prayer: Petition filed under Article 226 of the Constitution of India praying for issue of Writ of Certiorari, to call for the entire records pertaining to the impugned order passed by the 1st respondent vide his proceedings in Na.Ka.No.653/A1/2016 dated 11.11.2016 and quash the same.)

1. By virtue of the impugned order, which is under challenge in this writ petition, the respondents sought to recover from the petitioner, who is a widow of the deceased employee, after retirement.

2. Heard the learned counsel for the petitioner, the learned Government Advocate appearing for respondents 1, 3 and 4 and the learned counsel appearing for the 2nd respondent and perused the materials available on record.

3. The case of the petitioner is that her husband was a Teacher under the control of the 1st respondent and rendered continuous service for a period of 31 years and retired on 31st May, 2010, while he was working as a Headmaster at Panchayat Union Elementary School, Uppoor, R.S.Mangalam Panchayat Union. He died on 11.07.2014 at the age of 62 years. Prior to his retirement, after getting approval from the 1st respondent, the 2nd respondent had prepared pension papers, whereupon his last scale of pay was fixed as Rs.9300-34800. As per the Joint Pension Payment Order, normal family pension was fixed at the rate of Rs.6,789/- per month and enhanced family pension was fixed as Rs.11,315/- per month. The petitioner''s husband received his monthly pension after his retirement and after his death, the petitioner has been receiving enhanced family pension up to 09.05.2017.

4. On 15.11.2016, the petitioner received the impugned order in Na.Ka.No.653/A1/2016, dated 11.11.2016, wherein it is stated that during April, 2010, a sum of Rs.2,57,469/- was paid to the petitioner''s husband towards Provident Fund. But the accumulated Provident Fund up to March, 2010 was only Rs.1,36,437/- in the account of the petitioner''s husband. Thereby, a sum of Rs.1,21,232/- was excessively paid to him. It is further stated that a sum of Rs.18,749/- was paid as V-Pay Commission arrears to her husband. But the actual payment to be paid is Rs.16,738/- only. As such in that regard, Rs.2,011/- was excessively paid to her husband. Therefore, in the impugned order, it is stated that on the excess amount of Rs.1,23,243/- paid, interest was calculated as Rs.40,264/- up to 30th June, 2014. Vide the impugned order, the petitioner is directed to pay the said excess amount of Rs.1,63,507/- on or before 18.11.2016, failing which the amount will be recovered from the pension amount. Aggrieved by the action of the respondents, the present writ petition has been filed.

5. Learned counsel for the petitioner would submit that in the present case, the mistake was not on the part of the petitioner''s husband and there is no misrepresentation made by him with regard to the excess payment. As the petitioner''s husband got retired on 31st May, 2010 and died on 11.07.2014, in the light of the judgment of the Hon''ble Apex Court in State of Punjab and others etc. Vs. Rafiq Masih (White Washer) etc., reported in (2015) 4 SCC 334, recovery of excess payment could not be made from the retired employees or employees, who are due to retire within one year from the date of the order of recovery and when the excess payment has been made for a period of more than five years before the order of recovery is issued. Accordingly, he sought to allow the writ petition.

6. Learned counsel for the petitioner has also placed reliance on the order of the Madurai Bench of this Court in W.P.(MD) No.1429 of 2012, dated 16.07.2015.

7. On the other hand, the learned counsel appearing for the 2nd respondent, placing reliance on the order of the Hon''ble Apex Court in State of Punjab and others Vs. Rafiq Masih (Whitewasher) reported in (2014) 8 SCC 883, an order in Chandi Prasad Uniyal and others Vs. State of Uttarakhand and others reported in AIR 2012 SC 2951 and the order of this Court in W.P.No.7326 of 2018,