Recovery from retired Class III employees is impermissible without misrepresentation, as established by the Supreme Court.

ORDER :

1. With consent of both the parties, matter is heard finally.

2. The present petition has been preferred by petitioner under Article 226 of the Constitution seeking following reliefs:-

(i) That, the present petition filed by the petitioner may kindly be allowed;

(ii) That, the order dated 28.7.2023 Annexure P/1 passed by the respondents may kindly be directed to be quashed.

(iii) That, the respondents may kindly be directed to pay the outstanding amount of Rs.226587/- along with interest at the rate of 10% per annum.

(iv) That, any other just, suitable and proper relief, which this Hon’ble Court deems fit, may also kindly be granted to the petitioner. Costs be also awarded in favour of the petitioner.

3. Brief facts of the case are that the petitioner was appointed in the year 1979 on the post of Lower Division Clerk. Thereafter the petitioner was promoted in the month of April, 1980 from the post of L.D.C. to the post of Junior Inspector and further in the month of August, 1982 petitioner was promoted from the post of Junior Inspector to Senior Inspector and in the month of November, 1985 petitioner was further promoted from the post of Senior Inspector to Field Officer and petitioner retired from service on 31.12.2020. At the time of retirement there was no departmental enquiry pending against the petitioner and there was no punishment given to the petitioner at the time of retirement. After retirement of petitioner, he requested to the respondents/Department to issue the outstanding post retiral dues to him, but the same was not paid to the petitioner. On preferring the representation, the benefit of retiral dues was given to him but gratuity and leave encashment were not paid and the same was withheld and PPO was not issued in favor of the petitioner and also he was given anticipatory pension that too was fixed incorrectly. On non-payment of gratuity and leave encashment petitioner approached this Court and order dated 01.04.2023 was passed in favor of petitioner. In compliance of the said order, the petitioner was given all the outstanding dues, but some wrong fixation was done by the department with effect from 1.7.2006 to 31.12.2015 and the same has been recovered by the respondent no.3. to the tune of Rs.226587/- from the outstanding dues of the gratuity and leave encashment of the petitioner. The same is illegal and contrary to the principle of natural justice and also contrary to the law laid down by the Hon’ble Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer), 2015 (1) M.P.H.T. 130 (SC), because the petitioner is Class III employee and no recovery can be made against the Class III employee. Being aggrieved by the same, petitioner has filed this petition.

4. Per contra, learned counsel for respondents/State opposed the prayer by submitting in their return that after retirement of the petitioner, when the retiral dues were finalized by the Department, then it was revealed that some excess payment was made inadvertently in favor of petitioner from the period between 01.07.2006 to December 2015 to the tune of Rs.2,26,587. Due to want of excess amount earlier paid, the recovery order has been issued. The PPO has already been issued vide order dated 09.09.2023 and the pension has already been settled to the tune of Rs.41,200/- per month to the petitioner. Total amount which was to be paid to the petitioner was Rs.7,19,845/- and out of that the recovery amount to the tune of Rs.2,26,587/- has been recovered from the head of leave encashment and rest of the amount to the tune of Rs.4,93,258/- has been paid to the petitioner. GPF amount to the tune of Rs.16,16,601/- has already been paid to petitioner and GIS amount to the tune of Rs.1,20,665/- is also paid to the petitioner. That apart the gratuity amount to the tune of Rs.15,22,752/- is also paid in favor of petitioner. Petitioner had given an undertaking (indemnity bond) wherein he expressed his consent that if in future it is gathered