1. By way of this writ petition, the petitioner has, inter alia, prayed for the following relief:-

“(a) That respondents be directed to release an amount of Rs.2,35,972/- alongwith the interest @ 9% from 1.3.2018 to till its realization as per the latest law of Apex Court held in State of Punjab Vrs. Rafiq Mohd.”

2. The case of the petitioner is that he superannuated from service of the respondent-Department on 28.02.2018 from the post of A.C. Operator (Technical Grade-I), which is a Class-III post. His grievance is that after his superannuation, vide office order dated 19.05.2018 (Annexure P-3), an amount of Rs.2,35,972/- has been arbitrarily deducted by the respondent-Department from the retirement gratuity of the petitioner without any process having been initiated in this regard before his superannuation on the alleged ground that the deduction was being made for excess pay released to the petitioner w.e.f. 01.05.2010 up to 28.02.2018.

3. Mr. H.S. Rangra, learned counsel for the petitioner has argued that while in service, at no stage, any show cause notice was given to the petitioner by the respondent-Department that as from 01.05.2010 onwards, he had been made excess payments on account of wrong fixation of pay and as the impugned order was issued by the respondent-Department after superannuation of the petitioner, the same per se is not sustainable in the eyes of law in view of the law laid laid down by the Hon’ble Supreme Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others, (2015) 4 Supreme Court Cases 334 [LQ/SC/2014/1385] . On this count, learned counsel for the petitioner has prayed that the petition be allowed and office order dated 19.05.2018, to the extent that an amount of Rs.2,35,972/- has been ordered to be deducted from the retirement gratuity payable to the petitioner, be quashed and set aside, with a direction to the respondents to pay to the petitioner the amount which has been illegally deducted from the retirement gratuity of the petitioner.

4. The petition is opposed by the State, inter alia, on the ground that office order dated 19.05.2018 suffered from no infirmity for the reason that it was only after the superannuation of the petitioner that it was discovered that on account of excess pay released in favour of the petitioner in between 01.05.2010 up to 28.02.2018, an amount of Rs.2,35,972/- stood paid to the petitioner and immediately thereafter, steps were taken by the Department to recover the said amount from the petitioner by way of deduction thereof from the amount of retirement gratuity.

5. Learned Additional Advocate General has argued that it is not as if in all cases, after superannuation of an incumbent, no recovery can be effected from him and by placing reliance on the judgment of the Supreme Court in High Court of Punjab and Haryana and others Vs. Jagdev Singh, (2016) 14 Supreme Court Cases 267, [LQ/SC/2016/968] he has submitted that even in matters where a person has superannuated, the employer can effect recoveries.

6. I have heard learned counsel for the parties and also gone through the pleadings as well as the documents appended therewith and also the judgments relied upon by learned counsel for the parties.

7. It is not in dispute that the petitioner superannuated from the post of A.C. Operator (Technical Grade-I), which is a Class-III post. It is also not in dispute that before the issuance of Annexure P-3, dated 19.05.2018, which admittedly was issued after superannuation of the petitioner, at no stage, the petitioner was apprised by the Department, more so, while the petitioner was in service that certain excess payments stood made to him on account of wrong fixation of his pay etc. That being the case, this Court concurs with the submission made by learned counsel for the petitioner that the present case is squarely covered by the judgment of the Hon’ble Supreme Court in Rafiq Masih’s case (supra) in para-18 whereof, the Hon’ble Supreme Court has been pleased to hold that recoveries by employer would be impermissible in law from the employees belonging to Class-III and Class-IV service and from retired employees or employees who are due to retire within one year of the order of recovery. The Court again emphasizes that in the present case, the recovery has been effected after the superannuation of the petitioner, who happens to be a Class-III employee.

8. As far as the judgment being relied upon by learned Additional Advocate General is concerned, the Hon’ble Supreme Court in paras-9 to 11 thereof was pleased to hold as under:-

“9. The submission of the Respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the state. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the Respondent was clearly on notice of the fact that a future re-fixation or revision may warrant an adjustment of the excess payment, if any, made.

10. In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc1. this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer 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.” (emphasis supplied).

11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.”

9. This Court is of the considered view that the law laid down in the said case is not applicable in the facts of the present case for the reason that it is not the case of the respondents herein that the petitioner was clearly placed on notice before his superannuation at any stage that any payment found to have been made in excess, would be required to be refunded. Thus, as the facts of the present case are totally different from the facts as were there in the matter which was before the Hon’ble Supreme Court in Jagdev Singh’s case (supra), while fully respecting the law laid down by the Hon’ble Supreme Court in the said judgment, this Court holds that on facts, said judgment does not covers the present case and the same is squarely covered by the earlier judgment of Hon’ble Supreme Court in Rafiq Masih’s case (supra).

10. Accordingly, this writ petition is allowed. Office order dated 19.05.2018 (Annexure P-3) to the extent that the amount of Rs.2,35,972/- has been deducted on account of excess payment w.e.f. 01.05.2010 up to 28.02.2018 from the retirement gratuity of the petitioner is held to be bad in law and the same is quashed and set aside and the respondents are directed to make good the said amount within a period of 90 days from today, failing which, the same shall entail simple interest @ 6% per annum as from the date of judgment till actual payment. Petition stands disposed of, so also pending miscellaneous applications, if any.