IMPORTANT POINT
Recovery of excess payments from retired Class-IV employees is impermissible without due process and violates principles of natural justice.

JUDGMENT :

Rajesh Singh Chauhan, J.

1. Heard Sri Pranav Mishra and Sri Ratnesh Singh, learned counsels for the petitioner and Sri Sandeep Sharma, learned Standing Counsel for the State.

2. By means of this writ petition, the petitioner has prayed for the following reliefs:-

"(i) to issue a writ, order or direction in the nature of certiorari thereby quashing the impugned order dated 29.04.2023 passed by the opposite party No.3 (as contained in Annexure No.1) to the writ petition.

(ii) to issue a writ, order or direction in the nature of mandamus commanding the opposite parties to refund the amount deducted from the post of retiral dues of the petitioner without any diminution to his emoluments."

3. The precise contention of learned counsel for the petitioner is that the petitioner retired from the post of Follower, which is a Class-IV post, on 30.06.2022 while serving at Sitapur. The petitioner is aggrieved from the order dated 29.04.2023 passed by the Superintendent of Police, District-Sitapur indicating therein that the petitioner retired on 30.06.2022 and on 30.07.2022 the Finance Controller of the Police Department found that the petitioner was paid some excess amount to the tune of Rs.5,38,674/- while providing him the benefit of revised pay-scale. This order further reads that the total amount regarding commutation of pension is Rs.7,94,490/- and after deducting a sum of Rs.5,38,674/- he would be paid Rs.2,55,816/-.

4. Learned counsel for the petitioner has stated that in the aforesaid manner after declaring a sum of Rs.5,38,674/- as excess amount that amount has been deducted from the commutation of pension which is not permissible under the law as no amount can be recoverable from the amount of commutation of pension.

5. Learned counsel for the petitioner has submitted with vehemence that at the time of providing the benefit of revised pay-scale when he was in service, no undertaking was received from the petitioner inasmuch as if any undertaking was received from him that would have been indicated in the impugned order. He has further submitted that before deducting the amount in question from commutation of pension no opportunity of hearing has been provided to the petitioner inasmuch as if any opportunity was afforded to the petitioner, it would have been indicated in the impugned order itself, but both the aforesaid legal requirements are missing in the impugned order. Besides, learned counsel for the petitioner has drawn attention of this Court towards para-18 of the dictum of Apex Court rendered in the case in re: State of Punjab and others v. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334, wherein the Hon'ble Apex Court has held as under:-

"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 here-in-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 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."

6. On the basis of aforesaid