No recovery of excess pension can be made from legal heirs of a deceased employee in the absence of statutory provisions, affirming the constitutional right to pension under Article 300A.

JUDGMENT

Mr. Jagmohan Bansal, J. (Oral)

The petitioner through instant petition under Articles 226/227 of the Constitution of India is seeking direction to respondents not to effect recovery with respect to already paid pensionary benefits.

2. The respondent vide communication dated 23.05.2017 (Annexure P-16) has ordered for recovery of excess pension drawn by Bhag Chand-petitioner.

3. Mr. Sukhdev Singh Gopera, counsel for the petitioner would submit that during the pendency of petition, the petitioner has passed away and his wife passed away earlier.

4. Mr. Karan Kumar Jund, Senior Panel Counsel, submits that no recovery of excess payment can be made from LRs of deceased employee.

5. Learned counsel for the respondent-bank asserts that a sum of Rs. 97,754/- was recovered from deceased employee and remaining amount is yet to be recovered.

Faced with statement made by learned counsel for the respondent-UOI, Mr. Mahesh Dheer, Advocate submits that deceased employee had furnished undertaking and as per said undertaking, bank can recover excess payment even from legal heirs.

6. During the pendency of present petition, Bhag Chand-petitioner has passed away. His wife is also no more. The matter was adjourned twice to bring on record LRs, however, till date, there is no application of LRs. As per State, amendment of Sub-rule (2) of Rule 3 of Order XXII of CPC, the petition does not abate against the petitioner. The respondent-bank is claiming that they have right to recover excess payment of pension from legal heirs of the deceased employee. To resolve the issue and put the litigation to rest, I think it appropriate to adjudicate the issues raised by parties.

7. Supreme Court in State of Punjab v. Rafiq Masih (White Washer) etc 2015 (4) SCC 334 has laid down circumstances where no recovery can be effected from an employee despite excess payment. The circumstances enumerated in the judgment are not conclusive. The circumstances where the Court has categorically held that no recovery shall be effected are reproduced as below :

"18. 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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

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

(iii) Recovery from the 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 wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."

(emphasis supplied)

8. Hon'ble Supreme Court in State of Punjab v. Jullundur Vegetables Syndicate (1966) 2 SCR 457 while dealing with recovery of sales tax dues has held that recovery in the absence of specific provision in the Act cannot be made from legal heirs of a dealer. The said opinion has been reiterated by Supreme Court in Shabina Abraham and others v. Collector of Central Excise and Customs, (2015) 34 GSTR 146 while dealing with recovery under Central Excise Act, 1944. The Supreme Court has clearly held that in the absence of statutory provision, no recovery can be effected from legal heirs of an individual. As there is no provision under Central Excise Act, no