Arijit Banerjee, J. - (1.) Affidavit of service filed in Court today be kept on record.
(2.) The petitioners are the legal heirs of the deceased who was an assistant teacher of a primary school and retired from service on August 31, 1995. He died on September 7, 2010. The mother of the petitioners died on March 21, 2016. The Pension Payment Order was issued by the respondent Authorities on March 31, 2002. An amount of Rs. 27,302/- was deducted on account of alleged overdrawal. Being aggrieved, the petitioners have approached this Court by way of the present writ petition.
(3.) Learned Counsel for the petitioners 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 his part. In support of his 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 2 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.";