JUDGMENT :

Harsimran Singh Sethi J. (Oral)

In the present writ petition, the grievance being raised by the petitioner is that after his retirement, certain recoveries have been done from his pensionary benefits which is not admissible hence, an amount of Rs.35,492/-, which has been deducted from his pensionary benefits, is liable to be refunded by the State.

2. Further, prayer of the petitioner is that his pay was not fixed in accordance with law hence, the respondents be directed to fix his pay in accordance with law keeping in view the pay being given to an employee who was junior to the petitioner.

3. At the time of hearing, learned counsel for the petitioner submits that the prayer with regard to re-fixation of the pay of the petitioner be treated as not pressed keeping in view the fact that the petitioner has retired from service in the year 2005 and the present writ petition was filed after 13 years of retirement and that too claiming the service benefits.

4. Upon notice of motion, the respondents have filed the reply wherein, the respondents have stated that the benefit which was not admissible to the petitioner in the year 1996 was wrongly extended to him and after the retirement, upon checking of the pay granted to the petitioner, the said discrepancy came to the notice of the Department hence, the recovery was effected from the pensionary benefits of the petitioner after refixing his salary.

5. On being asked as to whether, any show cause notice was given to the petitioner before re-fixing salary and withdrawing the benefit already granted, learned counsel for the respondent-High Court has not been able to point out any such notice given to the petitioner before effecting the recovery from his pensionary benefits.

6. I have heard learned counsel for the parties and have gone through the record with their able assistance.

7. As per the respondents, certain benefits were wrongly extended to the petitioner in the year 1996, which only came to the notice of the Department in the year 2005 after the retirement of the petitioner. Now, the question arises is whether, the said fact will give right to the Department to claim recovery of the excess amount.

8. The said question of law has already been settled by the Hon'ble Supreme Court of India in State of Punjab and others Vs. Rafiq Masih (White Washer) etc., 2015(1) S.C.T., 195. The relevant paragraph 12 of the said 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:-

9. A bare perusal of the above reproduction would show that no recovery can be done from a class III and class IV employee and in the present case, the petitioner was working as a class III employee even at the time of his retirement.

10. Further, as per clause II of the paragraph 12 of the judgment of Rafiq Masih's case (supra), no recovery can be done from a retired employee. In the present case, the petitioner had already retired and the recovery of Rs.35,492/- was done from his pensionary benefits.

11. Further, as per clause III of the paragraph 12 of the judgment of Rafiq Masih's case (supra), no recovery can be done from an employee even if the excess payment has been made in case the said excess payment continued to be paid for a period of more than five years. In the present case, concededly the excess payment was made to the petitioner for a period of approximately nine years before the said benefit was withdrawn and recovery was done.

12. Learned counsel for the respondents has not been able to point out as to how, the judgment in Rafiq Masih's case (supra) cannot be made applicable to the petitioner.

13. At this stage, the argument has