Shakuntla vs State Of Uttarakhand And Others

Ravindra Maithani, J

The petitioner claims retiral dues and also refund of the amount, which was deducted from such dues.

Heard learned counsel for the parties and perused the record.

It is the case of the petitioner that she was initially appointed as Medical attendant on 28.06.1983, and retired on 30.09.2019 as Swasth Nirakshika, but she has yet not been paid pension and other retiral dues, including gratuity, and when approached, the respondent-authorities revealed that Rs. 2,77,812/- is to be deducted from her retiral dues. The petitioner claims retiral dues with 18 per cent rate of interest as well as the refund of the amount that has been deducted from her retiral dues.

State has filed objections. The factual position is not in dispute. According to respondents-State, Rs. 2,77,812/- has been deducted from gratuity amount due to wrong fixation of salary of the petitioner with effect from 28.06.2007. It is not the case of the respondents that the petitioner did make any false representation or she ever played any fraud in receiving any excess payment.

Learned counsel for the petitioner would submit that the petitioner has wrongly been denied her retiral dues; the petitioner has yet not been paid the pension; the petitioner has retired from Group-C post.

He would also submit that in view of the judgment passed by the Hon’ble Supreme Court in the case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and Others, (2015) 4 SCC 334, such recovery cannot be made.

Learned State Counsel would submit that due to wrong fixation, some excess amount has been paid to the petitioner, which is proposed to be recovered from her retiral dues.

The Court posed a question to learned State Counsel as to whether the excess payment has been made due to any misrepresentation or fraud of the petitioner? The answer is, “No”.

In the case of Rafiq Masih (supra), the Hon’ble Supreme Court laid down the law in the following terms:-

“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:

(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.”

The petitioner has not been paid the pension and gratuity for the last 6 years. This position may not be a happy affair in a welfare State. Recovery cannot be made from the petitioner in view of the law, as laid down by the Hon’ble Supreme Court, in the case of Rafiq Masih (supra). Therefore, this Court is of the view that the petition deserves to be allowed.

The petition is allowed.

The respondents are directed to pay post retiral dues and pension to the petitioner forthwith without making any recovery.

The petitioner is also be entitled to interest at the rate of 9 per cent from the date when it became due till actual payment is received by her.