The main legal point established in the judgment is that no recovery can be made from a retired employee or the legal heirs of the retired employee, or with regard to an amount which was being paid for a continuous period of five years. The judgment also emphasized the importance of complying with the rules of natural justice before effecting any recovery.

JUDGMENT :

HARSIMRAN SINGH SETHI, J.

1. In the present petition, grievance of the petitioner is that her family pension has been deducted to the tune of 50% so as to recover the excess amount which was paid to her by the respondents.

2. Certain facts needs to be mentioned for the correct appreciation of the issue in hand.

3. One Sh. Kanwar Singh late husband of the petitioner who was working with the Department of Health, Haryana, retired on attaining the age of superannuation on 31.01.2004. After the retirement, the said Kanwar Singh S/o Roop Ram was granted the benefit of pension. The husband of the petitioner died on 23.07.2005 but the pension was being granted to Kanwar Singh. In the year 2019, the respondents realized their mistake of giving the pension to a dead employee rather than fixing the family pension of the petitioner, the respondent issued an order recovering the excess amount paid to Kanwar Singh by way of pension, so as to be deducted from the family pension for which the petitioner was entitled for after the death of her husband.

4. The grievance of the petitioner is that without giving any recovery notice, straightaway the deduction have been made from the entitlement of the family pension of the petitioner which is arbitrary and illegal. As per the petitioner, no recovery can be made from a retired employee or the legal heirs of the retired employee or with regard to an amount which was being paid by the respondent for a continuous period of five years, keeping in view the judgment of Hon’ble Supreme Court passed in ‘Civil Appeal No.11527 of 2014 titled as ‘State of Punjab and others Vs. Rafiq Masih and others’.

5. The respondents are defending the recovery being done from the petitioner. The respondent No.4-Bank has filed the reply, wherein, it has been mentioned that the mistake occurred at the hands of the bank in not granting the family pension after the death of the husband of the petitioner and the dead employee was being paid the pension and when the said mistake was detected in the year 2019, the deductions receiving of excess payment was ordered to be recorded from the entitlement of family pension. Learned counsel submits that the petitioner herself allowed the Bank to deduct the amount, keeping in view the request Annexure R4/1.

6. The State in its reply has submitted that there is no role of the State in recovering the amount from the petitioner as the same is being done by the Bank at their own and that too without there being any order passed by the State.

7. I have heard learned counsel appearing on behalf of the respondents and have gone through the record with the able assistance.

8. It is the matter of fact that the pension was being paid by the respondent-Bank after the death of the husband of the petitioner. The said error was attributable to the bank only and not to the petitioner. Once there is no misrepresentation on part of the petitioner to get an amount, the recovery being done from her is totally contrary to the settled principle of law settled by the Hon’ble Supreme Court of India in Rafiq Masih’s case (supra). The relevant paragraph-12 of the judgment is as under:-

‘12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfull