Writ petition challenging CAA over-citing tribunal order allowing refund of overpayments to deceased husband. Court held recovery from widow impermissible per Rafiq Masih ratio, dismissing petition and upholding tribunal.
Writ petition dismissed. Tribunal order dismissing refund claim upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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SMT KANTA DEVI ..... Respondent
Through: Mr. Ankur Chhibber, Mr. Yogesh, Mr. Harkesh Parashar and Mr. Anshuman Mehrotra, Advs.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI HON'BLE MR. JUSTICE SAURABH BANERJEE
REKHA PALLI, J (ORAL)
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absorbed in 1988. It is the common case of the parties that the respondent’s late husband continued to serve the petitioners till he was invalidated from service w.e.f. 27.05.2015, whereafter, vide an order dated 10.06.2015, the petitioners regularised his leave period from 07.06.2010 to 26.05.2015. This was only after late Sh. Bhoora Singh, had vide an application dated 13.02.2015 sought invalid pension on the ground that he was 50% permanently disabled. However, even though he was invalidated, he was not paid any invalid pension on the ground that a sum of Rs. 21,24,219/- was recoverable from him. Before any recoveries could be made from him, the respondent’s late husband Sh. Bhoora Singh expired on 27.12.2015.
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representation was rejected by the petitioners. Upon rejection thereof, the respondent again approached the learned Tribunal by way of O.A No. 2335/2022 which has been allowed vide the impugned order.
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refund of the purported over payments made to the respondent’s late husband in 2015.
“8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.
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10. In view of the afore stated constitutional mandate, equity and good conscience in the matter of livelihood of the people of this country has to be the basis of all governmental actions. An action of the State,
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ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.
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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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law :
(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.”
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over payments made to late Shri Bhoora Singh pertained to the leave period between 07.06.2010 and 26.05.2015, which period, had been regularised by the petitioner itself vide its order dated 10.06.2015. This Court finds no plausible reason for the petitioners to persist with the said recoveries from the respondent, who is the widow of late Sh. Bhoora Singh, who had served the petitioner for a long period of twenty seven years prior to being invalidated from service.
“Admittedly, the husband of the applicant was sick and has died due to his sickness. He had been in receipt of certain amount, for which, the widow of the applicant cannot be held responsible. She has not committed any act of commission or omission, and, therefore, she cannot be held guilty for something she has not done. The recovery has been inflicted ·without issuing any Show Cause Notice to her and the Gratuity has been deducted from the retiral dues of the deceased husband of the applicant, which is in clear violation of principles of natural justice. Therefore, the impugned order as we11 as the recoveries so made from the applicant cannot be sustainable in the eyes of law.”
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that the purported over payment pertains to a period of almost five years, which payments were made to the respondent’s late husband without any misrepresentation having been made by him, the action of the petitioners in seeking to make these recoveries would be hit by the ratio of the decision in Rafiq Masih (supra).
(REKHA PALLI) JUDGE
(SAURABH BANERJEE) JUDGE
MAY 03, 2024/ SU
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3 issues framed by the court
Whether the recovery of dues for erroneous over-payments from the respondent, who is the widow of a deceased Group C employee, is permissible after her husband's demise.
Whether the recovery action infringes upon the settled legal principles established in State of Punjab Vs. Rafiq Masih regarding impermissibility of recovery from retired employees.
Whether exigencies of a suit under Article 14 of the Constitution of India preclude recovery from a deceased employee's family when the overpayment pertained to nearly five years prior to recovery.
Colour shows how this judgement treated each authority
State of Punjab Vs. Rafiq MasihApplied¶8
State of Punjab Vs. Rafiq Masih, (2015) 4 SCC 334 · Who else cites this
3 provisions across 3 enactments
COMMISSIONER OF POLICE AND ORS
SMT KANTA DEVI
HON'BLE MS. JUSTICE REKHA PALLI
HON'BLE MR. JUSTICE SAURABH BANERJEE
As recorded by the court registry
A petition under Article 226 of the Constitution asking a High Court to issue a writ against the State or a public authority in a civil matter.
Judgements on the same questions, provisions and authorities, from every court
