Recovery of excess payments from retired employees is impermissible unless fraud or misrepresentation is established, as reaffirmed by the Supreme Court.

JUDGMENT

Mr. Namit Kumar, J.

The petitioner has filed the instant writ petition under Articles 226 and 227 of the Constitution of India seeking a writ of certiorari for quashing the order dated 16.03.2023 (Annexure P-7) and letter dated 28.02.2023 (Annexure P-5), whereby a recovery of Rs. 11,79,090/- has been ordered to be made from the retrial benefits of the petitioner and further sought a writ of mandamus directing the respondents to release all the retrial benefits of the petitioner along with interest @ 18% per annum.

2. Brief facts of the case, as have been pleaded in the present petition, are that the petitioner has joined the respondent-Corporation on 28.12.1995 as Baildar-cum-Chowkidar. Thereafter, he was promoted as pump operator on 21.09.2012 and Technician on 28.05.2015 and retired as such, on 31.05.2022, on attaining the age of superannuation. There was nothing adverse against the petitioner in his entire service record and his retirement was unconditional and without any rider. He had completed all the formalities required for grant of retrial and other service benefits and nothing more was required to be done by the petitioner. When the retrial benefits were not released to the petitioner, he made representation dated 13.07.2022 to the respondents. When no action was taken on the same, the petitioner got served legal notice dated 24.08.2022 upon the respondents for release of his retrial benefits but to no avail. Thereafter, the petitioner approached this Court by filing CWP No.25320 of 2022, which was disposed of vide order dated 06.12.2022, with a direction to respondent No.3 therein, to consider and decide the legal notice served by the petitioner, by passing a speaking and reasoned order, in accordance with law, within a period of three months from the date of receipt of certified copy of the order, after affording an opportunity of hearing to the respective parties. However, instead of releasing the retrial benefits to the petitioner, the respondents issued a show cause notice dated 03.03.2023, stating that a recovery of Rs. 11,79,090/- pertaining to period 21.09.2012 to 30.06.2021 is to be made from the retrial benefits of the petitioner. In this regard, a copy of letter dated 28.02.2023 was also supplied to the petitioner. On 07.03.2023, the petitioner appeared before respondent No.3 and submitted his written reply to the show cause notice. However, without considering the reply of the petitioner, respondent No.3 on 16.03.2023 had ordered that the amount of Rs. 11,79,090/- is to be recovered from the petitioner as stipulated in letter dated 28.02.2023 and the same would be deducted from the retrial benefits of the petitioner. It has further been ordered that 50% of the amount of pension will be deducted along with full amount of gratuity. Hence this petition.

3. On issuance of notice of motion, reply on behalf of respondents No.3 and 4 has been filed, in which it has been stated as under :-

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3. That on 28.05.2015 the petitioner was promoted as Technician his basic pay increased to Rs. 11130/- along with grade pay increased to Rs. 2800/- which comes to total Rs. 14130/- but inadvertently petitioner started getting pay Rs. 19520/- which was in his knowledge but he kept mum.

4. That moreover sixth pay commission notifications were implemented on local govt employees vide letter no DLG-1539-21/42437 dated 18.10.2021 and same was adopted by Municipal Corporation Kapurthla Vide resolution 61 dated 16.12.2021 and employees pay was fixed on level six level 12 w.e.f 01.01.2016 as per options submitted by employee in factor 2.59 and while pay fixation it has come to the knowledge of department that petitioner is getting extra and thereafter he started getting proper pay as per fixation Rs. 35400/-.

5. That being an employee of the Municipal Corporation Kapurthala, the petitioner was well aware of the fact that the audit of the Municipal Corporation Kapurthala (then Municipal Council) was not done after 31