CWP No. 29390 of 2018 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (229) CM-828-CWP-2025 in CM-829-CWP-2025 in/and CWP No. 29390 of 2018 (O&M) Date of Decision : 10.07.2025 Harchand Singh ...Petitioner Versus State of Punjab and another ...Respondents CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI Present: Mr. Saravpreet S. Gurna, Advocate for the petitioner. Mr. Ravinder Singh Rawal, A.A.G., Punjab. *** Harsimran Singh Sethi J. (Oral) CM-828-CWP-2025 Present application has been filed for seeking condonation of delay of 74 days in filing the application seeking restoration of the writ petition. Keeping in view the averments made in the application, which are duly supported by an affidavit, the application is allowed and delay of 74 days in filing the application seeking restoration of the writ petition is condoned. CM-829-CWP-2025 Present application has been filed for recalling the order dated 05.09.2024, by which, the present writ petition was dismissed for non- prosecution. KANCHAN 2025.07.15 16:22 I attest to the accuracy and integrity of this order/judgment CWP No. 29390 of 2018 (O&M) 2 Notice of the application to the counsel opposite. Mr. Ravinder Singh Rawal, A.A.G., Punjab, who is present in Court, accepts notice on behalf of the respondents. He raises no objection for the grant of prayer as raised in the present application. Keeping in view the averments made in the application, which is duly supported by an affidavit, the same is allowed. The order dated 05.09.2024 is recalled and the writ petition is restored to its original number and status. CWP No. 29390 of 2018 1. In the present petition, the claim of the petitioner is that after his retirement, his entitlement to the leave encashment was changed and ₹ recovery of 1,81,362/- has been done from the retiral benefits of the petitioner on the ground that excess payment has been made, which is arbitrary and illegal. 2. Learned counsel for the petitioner submits that the petitioner attained the age of superannuation on 30.04.2014 and was granted extension in service and ultimately, after availing two years extension he retired from service on 30.04.2016 and after his retirement, he was paid the leave encashment for a period of 300 days. Learned counsel for the petitioner further submits that after the retirement, the respondents issued a letter on 25.05.2016 that in case any leave during the extension period is availed which is more than the leave admissible during the extension period, the same will be deducted from the maximum admissibility by 300 leaves and not the total leaves in the kitty of the officer, which instruction has been made applicable upon the petitioner retrospectively so as to deduct certain KANCHAN 2025.07.15 16:22 I attest to the accuracy and integrity of this order/judgment CWP No. 29390 of 2018 (O&M) 3 leave from the kitty of the petitioner and recover the amount which was already paid, which is causing prejudice to the petitioner. 3. Learned counsel for the petitioner argues that as per the judgment of the Hon’ble Supreme Court of India in State of Punjab and others Vs. Rafiq Masih (White Washer) etc., 2015(1) S.C.T., 195, no recovery can be done from a retired employee. Learned counsel for the petitioner further argues that there was no misrepresentation on part of the petitioner at the time of getting the leave encashment for 300 days as the Instructions dated 25.05.2016 are being made applicable retrospectively upon the case of the petitioner who had retired from service on 30.04.2016. 4. Learned counsel for the respondents submits that the entitlement of the petitioner was to be seen as per the Notification dated 25.05.2016 and, therefore, the extra benefit of leave encashment granted to the petitioner was revised so as to effect recovery from him which is in consonance to the letter dated 25.05.2016 hence, no grievance can be raised by the petitioner. 5. I have heard learned counsel for the parties and have gone through the record with their able assistance. 6. It is a conceded position that the petitioner attained the age of superannuation after availing two years extension on 30.04.2016. On that day, the admissibility of the leave encashment was assessed and the petitioner was granted the benefit of leave encashment for a period of 300 days. After his retirement, the respondents issued an Instructions on 25.05.2016 with regard to the employees who had sought extension in service as to how their leave encashment will be calculated and the said Notification has been made applicable retrospectively upon the petitioner KANCHAN 2025.07.15 16:22 I attest to the accuracy and integrity of this order/judgment CWP No. 29390 of 2018 (O&M) 4 who had already retired by the time the letter dated 25.05.2016 was issued so as to effect recovery from him. 7. It may be noticed that the letter dated 25.05.2016 could not have been implemented qua the petitioner who had already stood retired from service on 30.04.2016 so as to re-fix his leave encashment entitlement and to effect recovery from the retiral payments admissible. 8. Further, as per the judgment in Rafiq Masih’s case (supra), no recovery can be done from a retired employee. The relevant paragraph of this judgment is as under :- “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 KANCHAN 2025.07.15 16:22 I attest to the accuracy and integrity of this order/judgment CWP No. 29390 of 2018 (O&M) 5 harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.” 9. The Hon'ble Supreme Court of India in Civil Appeal No.7115 of 2010 titled as Thomas Daniel versus State of Kerala and others, decided on 02.05.2022, has held that where an employee was not at fault with regard to the extension of benefit and there is no misrepresentation on behalf of the employee concerned to get the emoluments beyond his/her entitlement, the recovery cannot be done. The relevant paragraph of the said judgment is as under:- “(9) This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. This Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess.” KANCHAN 2025.07.15 16:22 I attest to the accuracy and integrity of this order/judgment CWP No. 29390 of 2018 (O&M) 6 10. Keeping in view the totality of the circumstances, the recovery ₹ of 1,81,362/- done from the petitioner is arbitrary and illegal and incorrect and is also contrary to the settled principle of law and the same could not have been effected, especially when no show cause notice was given to the petitioner before effecting the said recovery which violates the rules of natural justice. Hence, the orders dated 12.09.2016 (Annexure P-2) and Memo dated 06.11.2018 (Annexure P-3) are set-aside. The respondents are ₹ directed to refund the amount of 1,81,362/- recovered from the retiral benefits of the petitioner within a period of eight weeks of the receipt of copy of this order. 11. Writ petition is allowed in above terms. 12. Pending miscellaneous application, if any, also stands disposed of. July 10, 2025 (HARSIMRAN SINGH SETHI) kanchan JUDGE Whether speaking/reasoned : Yes Whether reportable : No KANCHAN 2025.07.15 16:22 I attest to the accuracy and integrity of this order/judgment