IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.16736 of 1998 (O&M) Date of Decision: 26.05.2009 Smt. Santosh Kumari ...Petitioner VERSUS State of Haryana and others ...Respondents CORAM: HON'BLE MR.JUSTICE AJAY TEWARI 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Anil Rathee, Advocate, Mr. C. M. Chopra, Advocate for the applicant-petitioner. Mr. Harish Rathee, Sr. DAG, Haryana. *** AJAY TEWARI J. The husband of the petitioner after serving in Indian Army was discharged in the year 1979 and was getting his pension according to the Rules in the year 1980. He was appointed as a Driver in the Haryana Roadways and, died on 12.05.1985 during service. After his death the petitioner and his family members started getting family pension both from the army authorities as well as from the State of Haryana. Vide Order dated 18.12.1997, the petitioner CWP No.16736 of 1998 (O&M) -2- was informed that she was entitled to the family pension only from one employer and hence should exercise her option. She exercised her option for getting family pension from the army authorities. The authorities of the respondents-State of Haryana communicated to the authorities of the Indian Army to recover an amount of Rs.53,981/-. As a consequence of which the family pension of the petitioner was totally stopped. It is this action which has been challenged in the writ petition. The case of the petitioner is that even though she may not have been entitled to the second family pension yet at no stage had made any wrongful averments or misleading statement which may have aided her in getting the pension and thus recovery could not be made against her. In Syed Abdul Qadir and others Vs. State of Bihar and others, reported as 2009(1) SCT 611, Hon'ble the Supreme Court after reviewing the entire law on the subject held as follows:- “This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) 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 CWP No.16736 of 1998 (O&M) -3- interpretation of rule/order, which is subsequently found to be erroneous. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. Consequently this writ petition is allowed and the order of recovery of Rs.53,981/- is set aside. ( AJAY TEWARI ) JUDGE May 26, 2009 ashish