ARIJIT BANERJEE,J. - (1.) Affidavit of service filed in Court today be kept on record. The petitioner was a teacher of a Primary School. He retired from service on April 30, 2008. The Pension Payment Order was issued by the respondent Authorities on April 18, 2008. An amount of Rs. 30,064/- was deducted on account of alleged over-drawal. Being aggrieved, the petitioner has approached this Court by way of the present writ petition. Learned Counsel for the petitioner submitted that recovery of excess payment cannot be made from the retiral benefits of an employee unless such excess payment was made to the concerned employee because of some misrepresentation or fraud on her part. In support of her submission, Learned Counsel relied on several decisions of this court and primarily on three Supreme Court decisions in the cases of Shyam Babu Verma-vs.- Union of India , (1994) 3 SCC 521, Syed Abdul Qadir-vs.-State of Bihar , (2009) 3 SCC 475 and State of Punjab-vs.-Rafiq Masih , (2014) 8 SCC 883. In paragraph 12 of the last of the said three judgments, the Hon'ble Apex Court observed as follows:- "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."
(2.) Learned Counsel for the State submitted that the orders passed by the Hon'ble Apex Court in Shyam Babu Verma (supra) and Syed Abdul Qadir (supra) were under Article 142 of the Constitution and did not amount to declaration of law under article 141 of the Constitution. According to him, the law is as declared by the Hon'ble Apex Court in Chandi Prasad Uniyal-vs.-State of Uttarakhand , (2012) 8 SCC 417, which is to the effect that except in few instances pointed out in Syed Abdul Qadir (supra) and in Col. B. J. Akkara-vs.-Govt. of India , (2006) 11 SCC 709, excess payment made due to wrong/irregular pay fixation can always be recovered. She further relied on a decision of the Hon'ble Apex Court dated 29 July, 2016 delivered in Civil Appeal No. 3500 of 2006 (High Court of Punjab & Haryana-vs.-Jagdev Singh ) in support of his submission that if at the time of taking benefit of a revised higher pay scale or at the time of applying for pensionary benefits the concerned employee/officer gives an undertaking/declaration that he would be liable to refund any excess payment made to him, he would be bound by such undertaking/declaration. As and when the excess payment is detected by the employer-State the same can be recovered from the concerned employee and the same can be deducted from the pensionary benefits released in favour of a superannuating employee if such excess payment is detected prior to releasing such benefits. He submitted that in the present case, at the time of opting for revised pay scale, the petitioner signed a declaration to the effect that the payment of the monthly bills and arrear bills drawn in the revised scale of pay are 'provisional' and are subject to subsequent adjustment and that the over-drawn benefits, if any, in this regard could be recovered forthwith from his salary bill. He submitted that the petitioner is bound by such declaration and is not entitled to claim payment of the amount deducted from the Pension Payment Order on account of over-drawal.
(3.) I have considered the rival contentions of the parties.;