18 April 2023 4:30 AM GMT
Despite the employee’s undertaking at the time of pay fixation to refund any excess amount paid to him, the Bombay High Court quashed an order to recover excess amount of over two lakhs from the widow of a high school lecturer. A division bench of Justice AS Chandurkar and Justice MW Chandwani noted that the widow and her children are completely dependent on the pension of Rs. 14,250/-...
Despite the employee’s undertaking at the time of pay fixation to refund any excess amount paid to him, the Bombay High Court quashed an order to recover excess amount of over two lakhs from the widow of a high school lecturer.
A division bench of Justice AS Chandurkar and Justice MW Chandwani noted that the widow and her children are completely dependent on the pension of Rs. 14,250/- per month and held that it would be harsh and iniquitous to recover the amount.
“Considering the facts that the deceased employee who died in his early during his service leaving behind him, a widow and children; the time gap of 16 years, when the amount has been sought to be recovered; the quantum of recovery amount and the amount of Family Pension; we are of the opinion, that it would be iniquitous and harsh to effect the recovery from the Family Pension of the petitioner, who is a widow and dependent entirely on her Family Pension”, the court held.
Though the employee had given the undertaking to refund excess amount, it is not permissible to recover excess amount from the family pension of his widow, the court stated.
“Though, the deceased employee had, at the time of fixation of his salary, given the undertaking but considering the situation mentioned above, it will not be permissible to recover the excess amount of Rs.2,62,841/- from the Family Pension of the petitioner”
When the pay grade was fixed by the Gadchiroli Zilla Parishad in 2002, the employee had given an undertaking to refund any access amount paid to him. In 2016, he died in service.
In 2021, the Zilla Parishad sought to recover over Rs. 2,62,841 /- from the family pension due to wrong fixation of grade pay for the period of July 1, 2002, to July 5, 2016. Hence the widow approached the court.
The question before the court was whether an employer can recover excess amount paid to a deceased employee from the legal heirs on the basis of undertaking given by the employee.
To support its case, the Zilla Parishad relied on High Court of Punjab and Haryana v. Jagdev Singh in which the Supreme Court held that if an employee gives an undertaking to refund any excess amount while opting for the new pay scale, he is bound by it.
The court referred to State of Punjab v. Rafiq Masih in which the Apex Court has given some situations where recovery of excess amount is impermissible.
The court said that the situations listed in the Rafiq Masih judgement are not exhaustive and recovery is impermissible in any other case if it is harsh to such an extent that it outweighs the employers right to recover access amount.
“relief against the recovery of excess amount is granted not because of any right of the employee, but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered”, the court said.
The court noted that in the Jagdev Singh case, the employee was alive and was getting full pension. Further, the recovery was sought within a year from the date of his retirement.
However, in the present case, the employee died in 2016 and his pay grade was revised in 2002, the court noted adding that he signed the undertaking in 2009.
The court said that the Zilla Parishad has sought to recover the excess amount after 16 years of the undertaking and almost 5 years after his death. Further, the family pension is already 50 percent of the original pension.
Thus, the court quashed two communications dated 18.1.2021 and 22.4.2021, to the extent that they direct recovery of alleged excess pay from the petitioner’s family pension.
Case no. – Writ Petition No. 4835/2021
Case Title – Sudha wd/o Bhagirath Meshram v. Zilla Parishad and Ors.
Citation: 2023 LiveLaw (Bom) 200
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