Union Of India & Ors vs Rakesh Kumar on 30 March, 2001
Now the next questions arises as to how such recovery can be made from the retiral benefits; who can recover the amount; through which procedure recovery can be made and the limitation, if any, to recover such amount. [para 9]
This issue has not been determined either by this Court in the case of Smt. Girish Kumari Prasad (supra) nor by the Supreme Court in the case Page 0297 of Union of India v. Rakesh Kumar (supra) or the cases, as referred by the parties. [para 10]
...The State can recover the amount by way of filing a suit before a Civil Court of competent jurisdiction or in appropriate case, may file certificate case but in both cases, law of limitation being applicable, it is not open to the State to recover any amount at anytime from pension or gratuity in the name of adjustment, that too without giving opportunity to the retired employee. Before recovery or adjustment of any amount from the pension or gratuity in the case of mistaken calculation or payment in excess, the retired employee should be given an opportunity of hearing to state as to why the amount be not recovered/ adjusted from his pension/gratuity and it will be open to the retired employee to show that such recovery or adjustment is uncalled for or is barred by limitation....[para 13]
...if a person by misrepresentation or duping the State Government draws excess amount of salary or order benefit, such action being misconduct, after retirement it can be recovered only under Rule 43(b) of the Bihar Pension Rules 1950. If charge is not framed while employee is in service, after retirement it is only the State Government, empowered to do so and not any other officer and there is a limitation of four years, prescribed under the Rule.... [para 15]
In these type of cases when excess payment is made to a Government employee by mistake and such mistake is committed by some other person, one cannot ignore Rule 43(b) in such cases. It is not that only in the case of misconduct Rule 43(b) can be invoked but it can also be invoked against an employee, if there is a pecuniary loss, caused to the Government due to negligence of the employee. That means the employee due to whose negligence such amount was paid to another employee and such negligence caused pecuniary loss to the State Government, then why the State Government will not recover the amount by invoking the provisions of Rule 43(b) against the person, due to whose negligence pecuniary loss was caused to the State Government....[para 16]