IMPORTANT POINT
The court established that recovery of excess payments from retired employees, particularly from lower service classes, is impermissible if it results in undue hardship, reinforcing the principles of equity and justice as enshrined in the Constitution.

JUDGMENT :

J.J. MUNIR, J.

1. The question involved in this petition is: Whether in case of a retired Group 'D' employee, any excess payment of emoluments made during the period of service, which he consents to refund out of his dues at a later point of time, if found erroneous, can be deducted from the employee's post retiral benefits? The other question is: Can recovery of emoluments paid by the employer due to an erroneous fixation be made on a mere objection by the Local Fund Audit, without opportunity of hearing to the employee and a proper order made to that effect?

2. The petitioner was a Chungi Munshi, a Group 'D' employee with the Nagar Palika Parishad, Basti. He attained the age of superannuation and retired from service on 30.04.2022. At the time of his retirement, the petitioner was in receipt of a basic pay of Rs.53,600/-. The petitioner says that he has never been subjected to any disciplinary action and his service record is unblemished. The Commissioner, Basti Division, Basti addressed a memo dated 21.07.2023 to the Branch Manager, State Bank of India, Basti, asking the latter, to pay the petitioner his gratuity in the sum of Rs.9,46,308/-. He also addressed another memo of the same date for payment of the petitioner's pension, also addressed to the Branch Manager, State Bank of India, Basti. These sums of money were not paid to the petitioner and, accordingly, the petitioner represented in the matter to the Executive Officer, Nagar Palika Parishad, Basti for the payment of his post retiral dues, including pension, gratuity, leave encashment, group insurance etc. through representations dated 30.05.2022, 15.12.2022 and 28.02.2023. The petitioner’s claim is that until date of institution of this writ petition, he has not been paid his pension and some retiral dues amounting to a sum of Rs.9,09,828/-. Others that remain outstanding are dues on account of leave encashment, gratuity and arrears of pension.

3. The petitioner complains of non-payment of his post retiral benefits and cites violation of Articles 21, 31(1) and 300-A of the Constitution. It is submitted that the respondents have no authority to withhold the arrears of his pension and other post retiral benefits. The petitioner urges that he has no other source of income and suffering immensely on account of non-payment of his post retiral benefits.

4. Notice of motion was issued in this case on 19.10.2023 and the Executive Officer was ordered to file his personal affidavit, showing cause. The payment of the petitioner's post retiral benefits was resisted by the Executive Officer through his personal affidavit taken note of in the order dated 11.12.2023, on ground that he has been paid in excess towards his salary at different points of time, while in service. The stand was that the petitioner would not receive anything beyond a sum of Rs.9,09,828/-, already paid to him. It was pointed out in the order dated 11.12.2023 that the petitioner had not, in any manner, contributed to the wrong calculation of his salary, and, therefore, cause ought to be shown by the respondents how they can deduct excess payment alleged from his post retiral dues. The respondents' attention was invited to the law laid down by the Supreme Court in State of Punjab and others v. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334.

5. A further personal affidavit was filed by the Officiating Executive Officer, Nagar Palika Parishad, Basti, who happened to be the Sub-Divisional Magistrate (Judicial), Sadar, Basti at the time. In his affidavit, the stand taken is that the Deputy Director, Local Fund Audit, Basti Division, Basti had provided the petitioner promotional pay scale/ ACP on conditions that if in future any mistake is found in the calculation or fixation of the pay scale, then excess payment, if any, made may be deducted from the petitioner's emoluments. In pursuance to the aforesaid stand of the Nagar Palika, the petitioner accepted the condition and furnished a letter dated 0