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Judgment
The petitioner has filed the instant writ petition under Articles 226 and 227 of the Constitution of India, seeking issuance of a writ of certiorari for quashing the order dated 27.12.2018 (Annexure P-11), passed by respondent No.2, whereby recovery of Rs.16,31,692/- has been ordered to be effected from the pensionary benefits of the deceased husband of the petitioner, on account of shortage of material, while he was working on the post of Junior Engineer, and letter dated 25.10.2021 (Annexure P-15), issued by respondent No.3, whereby recovery or Rs.3,76,239/- has been ordered to be effected, on account of promotional increment, which was wrongly given to the deceased husband of the petitioner, while he was in service. Further seeking issuance of a writ of mandamus directing the respondents to refund the abovesaid amounts deducted from the retiral benefits of the deceased husband of the petitioner, along with interest @ 18% per annum.
Briefly stated the facts of the case, as have been pleaded in the petition, are that the husband of the petitioner, namely Sh. Boota Singh, had joined the erstwhile Punjab State Electricity Board (now Punjab State Power Corporation Limited) as Lineman on 05.08.1987. During his service tenure, he got 08 years proficiency step up on 05.08.1995 and also got 09 years time bound promotional scale on 05.08.1996 and thereafter 16 years time bound promotional scale on 05.08.2003. Meanwhile, he completed Diploma in Electrical Engineering and after passing the departmental test against CRA/109/1997, he was promoted to the post of Junior Engineer on 30.06.2000. After rendering approximately 30 years of service with the respondent-Corporation, the husband of the petitioner died in harness on 30.03.2017, while serving as Junior Engineer. After the death of her husband, the petitioner made various representations to the respondent-Corporation, including representation dated 09.05.2018, for the payment of retrial benefits of her deceased husband. However, when the said benefits were not released by the respondent-Corporation, the petitioner was constrained to approach this Court by filing CWP No.18634 of 2018 (Joginder Kaur Vs. Punjab State Power Corporation Limited and others). The said writ petition was disposed of by this Court, vide order dated 31.07.2018 (Annexure P-2), with a direction to the Chairman-cum-Managing Director, Punjab State Power Corporation Limited, Patiala or any other officer subordinate to him, who is competent to deal with representation to take a conscious decision, within a period of three months. Pursuant to the said order, respondent No.2 passed the impugned order dated 27.12.2018 (Annexure P-11), whereby recovery of Rs.16,31,692/- was ordered to be effected from the pensionary benefits of the deceased husband of the petitioner as well as from the remaining amount being paid to the petitioner, on account of shortage of material, being not returned by the husband of the petitioner to the respondent-Corporation. Aggrieved against the order dated 27.12.2018, the petitioner preferred an appeal dated 22.07.2019, however, the same was misplaced by the respondents. Thereafter, the petitioner filed a fresh appeal dated 08.01.2021 (Annexure P-14) against the order dated 27.12.2018. During the pendency of the said appeal, the Appellate Authority issued a letter dated 25.10.2021 (Annexure P-15), whereby recovery or Rs.3,76,239/- was ordered to be effected from the retiral benefits of the deceased husband of the petitioner on account of excess salary being paid to him, while he was in service. Since the appeal dated 08.01.2021, filed by the petitioner, was not decided by the Appellate Authority, therefore, the petitioner was again constrained to approach this Court by filing CWP No.15581 of 2022 (Joginder Kaur Vs. Punjab State Power Corporation Limited and others) seeking issuance of directions to the respondents to decide the statutory appeal dated 08.01.2021 filed by the petitioner in a time bound manner. The said writ petition was disposed of by this Court, vide order dated 19.09.2022 (Annexure P-16), with a direction to the Appellate Authority to dispose of the pending statutory appeal within a period of eight weeks. It was further ordered that, in case, after the decision, the petitioner is found entitled for any benefits, the same be also paid to her within a period of four weeks thereafter, as per law. In pursuance thereto, the Appellate Authority sent a letter dated 03.10.2022 (Annexure P-17) to the petitioner stating therein that since no punishment has been given to her deceased husband nor any charge-sheet was issued to him, therefore, appeal against the order dated 27.12.2018 is not covered as per published book of Employees Punishment and Appeal Rules, 1971 of PSPCL. Hence, the instant petition.
Learned counsel for the petitioner submits that the husband of the petitioner, who was working with the respondent-Corporation as Junior Engineer, died in harness on 30.03.2017, whereas recovery of an amount of Rs.16,31,692/-, on account of shortage of material, was ordered to be effected from the retiral benefits of the deceased husband of the petitioner vide order dated 27.12.2018 (Annexure P-11), i.e., after a period of more than one year and eight months from the date of his death. He further submits that recovery of an amount of Rs.3,76,239/-, being promotional increment wrongly paid to the husband of the petitioner, was ordered to be effected from the retiral benefits, vide letter/order dated 25.10.2021 (Annexure P-15), i.e., after a period of more than four years and six months from the date of his death. He further submits that the abovesaid amounts have been ordered to be recovered from the death-cum-retiral benefits of the husband of the petitioner, without issuance of any show cause notice or granting any personal hearing in unilateral manner, which is not only in violation of the principles of natural justice but is also against the law laid down in judgment of the Hon’ble Supreme Court passed in State of Punjab and others Vs. Rafiq Masih (White Washer) and others : 2015(1) S.C.T. 195. He further submits that no recovery can be effected from the legal representatives of the deceased employee. In support of his contention, learned counsel for the petitioner has placed reliance upon the judgment passed by this Court in Ex Naik Bhag Chand Vs. Director General of Police, CRPF and others : 2024 LIC 1694.
Per contra, learned counsel for the respondents, while referring to the averments made in the written statement filed on behalf of the respondents, submits that the deceased employee never submitted MAS (Material at Site) Accounts to the respondent-Corporation despite number of letters written to him, while he was in service. Thereafter, in accordance with Finance Circular No.5/2005 dated 18.07.2005, a committee was constituted, vide order dated 23.05.2017, for clearance of MAS Accounts after the death of deceased employee. Subsequently, the committee conducted spot inspection and the shortage of material was calculated, whereby total recovery of shortage of material of Rs.16,31,692/- was found. He further submits that the deceased employee was recruited as Junior Engineer vide CRA-109-1997 against fresh recruitment and, therefore, he was wrongly given promotional increment on 01.06.2000, due to which the total excess salary amounting to Rs.3,76,239/- was paid to the deceased employee for the period from June, 2000 to August, 2016. Therefore, there is no illegality or infirmity in the impugned recoveries effected from the retiral benefits of the husband of the petitioner.
I have heard learned counsel for the parties and perused the relevant documents.
Admittedly, the husband of the petitioner unfortunately died on 30.03.2017, while he was working as Junior Engineer with the respondent-Corporation. After his death, recovery of Rs.16,31,692/-, on account of shortage of material, and Rs.3,76,239/-, on account of promotional increment wrongly given to the husband of the petitioner for the period from June 2000 to August 2016, was ordered to be effected from his retiral benefits, vide orders dated 27.12.2018 (Annexure P-11) and 25.10.2021 (Annexure P-15), respectively.
The facts and circumstances of the present case suggests that it was nowhere the case of the respondent-Corporation that there was any fraud or misrepresentation on the part of the husband of the petitioner to enure the benefit of fetching excess payment, rather the same was being paid by the respondents at its own. Further, the alleged recoveries were effected only after an inordinate and unexplained delay. The recovery due to shortage of material was ordered to be effected after a period of 01 year and 08 months from the date of his death, whereas recovery due to payment of excess salary was ordered to be effected after a period of more than 04 years from the date of his death. Such belated initiation of recovery proceedings in absence of any fraud or misrepresentation cannot be sustained in the eyes of law.
The Hon’ble Supreme Court in Rafiq Masih’s case (supra) has laid down circumstances where no recovery can be effected from an employee despite excess payment. The circumstances enumerated in the judgment are not conclusive. The circumstances where the Court has categorically held that no recovery shall be effected are reproduced as below :-
“12.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 herein 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 employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii)Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii)Recovery from 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.”
In view of the above, this Court is of the considered view that the case of the present petitioner is squarely covered by the principles and parameters laid down in Clauses (i), (iii) and (v) of para 12 of the judgment of Hon’ble Supreme Court passed in Rafiq Masih’s case (Supra).
Further, the husband of the petitioner had already expired on 30.03.2017 and the recoveries have been effected from his retiral benefits paid to the petitioner, vide orders dated 27.12.2018 (Annexure P-11) and 25.10.2021 (Annexure P-15), which are also wrong as in view of the settled law, no recovery can be effected from the LRs of the deceased employee. This Court in Ex Naik Bhag Chand Vs. Director General of Police, CRPF and others : 2024 LIC 1694 has held as under :-
“9.In the case in hand, as confirmed by counsel for the petitioner, the wife of the deceased employee has already passed away and children being major are not entitled to family pension, thus, state is not paying family pension to any family member of the deceased employee. The respondent-UOI has conceded that no recovery can be effected from legal heirs of deceased employee, however, bank is disputing on the ground that deceased employee had furnished undertaking. The undertaking, if any, furnished by deceased employee was binding upon him and in the absence of any statutory provision, it cannot create liability of legal heirs.
The Supreme Court in above-cited judgments has held that even tax cannot be recovered from legal heirs of a proprietorship concern if there is no statutory provision. An employee gets pension under the statutory provisions. The right of pension has been recognised as constitutional right in terms of Article 300-A of Constitution of India. It is apt to notice that prior to omission of clause (f) of article 19(1) of the Constitution of India, it was considered as fundamental right.
10.This Court everyday is getting similar cases where there is excess payment on account of mistake on the part of bank. The employer i.e. Union of India or State Government is not at fault whereas it is bank who is at fault and claiming that excess payment has been made on account of its mistake. There is no case whereas it has been found that mistake was on the part of employee. In every case, there is mistake on the part of bank. The bank has initiated recovery even against more than 80 years old widow. It ill behoves the banks.
11.In the above backdrop, this Court is of the considered opinion that the present petition deserves to be disposed of with a direction that no further recovery shall be effected from the legal heirs of the petitioner (deceased).”
Moreover, the alleged recoveries have been effected by the respondent-Corporation in violation of the principles of natural justice as neither any show cause notice was issued to the LRs of the deceased employee nor they were afforded an opportunity of personal hearing.
Consequently, the impugned orders dated 27.12.2018 (Annexure P-11) and 25.10.2021 (Annexure P-15) qua recovery of Rs.16,31,692/- and Rs.3,76,239/-, respectively, effected from the retiral benefits of the deceased husband of the petitioner are set aside. The respondent-Corporation is directed to refund the abovesaid recovered amounts along with interest @ 6% per annum from the date the same were recovered till its actual payment(s), within a period of 02 months from the date of receipt of certified copy of this order.
Disposed of in the above terms.