Recovery of excess pay from Class VI retiree's gratuity/leave encashment impermissible if due to departmental error over 5+ years, no fraud by employee, beyond 24-month regulatory limit, causing hardship – consent under duress invalid; refund directed.

O R D E R (FINAL)

JUSTICE RITU TAGORE, MEMBER [JUDL.]

01. The applicant, a Class VI retiree, is aggrieved of the action of the respondents in recovering an amount of Rs. 14,54,581/- from his retirement benefits on the ground of excess payments made to him due to alleged wrong fixation of his pay.

02. Through the medium of the present Original Application (O.A), the applicant seeks quashing and setting aside of impugned order, being GPO No 2433295222 dated 26.05.2022 (Annexure A-1) to the extent of Rs.10,48,014 has been recovered from the death cum retirement gratuity and impugned order, being intimation slip for PFO /FPPO No.2222195222 dated 31.05.2022 (Annexure A-2) in terms whereof an amount of Rs. 4,04,567/-has been recovered by the respondents from the leave encashment of the applicant and further prays for issuance of a direction to the respondents to reimburse the said recovered amount of Rs. 14,52,581 to the applicant forthwith.

03. Learned counsel for the applicant submits that the applicant was initially appointed as a Chainman vide order dated 17.06.1983 and, after rendering about 39 years of service, retired on 31.03.2022 as Soil Conservation Guard, who falls in the category of a class VI employee as specified in Schedule –II-A of J&K Soil Conservation (Subordinate) Service Recruitment Rules, 2004 (Executive). It is submitted that at the time of processing of pension papers, respondent No. 2 raised an objection regarding alleged wrong fixation of pay with effect from 01.01.2006 and ordered recovery of Rs. 14,52,581/-.

04. It is further submitted that an amount of Rs.10,48,014/- was recovered from the Death-cum-Retirement Gratuity of the applicant and the remaining amount of Rs. 4,04,567/- was recovered from leave encashment, thereby effecting full recovery of the alleged excess payment.

05. Learned counsel for the applicant contends that the recovery is illegal and unsustainable in law as the alleged excess payment pertains to a period more than 15 years prior to retirement and was not on account of any misrepresentation or fraud on the part of the applicant. It is submitted that the entire fixation was carried out by the respondents themselves and the applicant cannot be penalized for the mistake of the department.

06. Placing reliance on MP Medical Officers Association v. State of Madhya Pradesh, civil appeal no 5527 of 2022 decided on 26.08.2022, it is also contended by the learned counsel that the recovery of excess payments from the retiral benefits of the applicant, a Class VI retired employee, suffering from serious medical issues and has liability of a daughter of marriageable age is far disproportionately unreasonable than the corresponding fiscal gain to the mighty State.

07. It is further submitted that recovery has been effected without affording any proper opportunity of hearing to the applicant. The so-called consent obtained from the applicant was not voluntary and was obtained under compelling circumstances, particularly when the applicant was facing life consuming disease and has responsibility of a daughter.

08. Learned counsel further submits that the action of the respondents is in clear violation of the law laid down by the Hon’ble Suprem