Court No. - 16
Case :- WRIT - A No. - 5781 of 2018 Petitioner :- Babu Lal Yadav Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Kumar Anish Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Despite grant of opportunity, no counter affidavit has been filed. Considering the nature of order proposed to be passed, no further time is allowed to the respondents to file counter affidavit.
Petitioner is aggrieved by an order dated 10.10.2017, which records that his salary has been fixed incorrectly in the past and the same is, therefore, modified. The salary of the petitioner has been reduced relying upon certain Government Orders and the amount allegedly paid, in excess, is stated to have been adjusted from the retiral dues of the petitioner.
Learned counsel for the petitioner submits that the salary of the petitioner has been incorrectly modified inasmuch as his salary has previously been fixed, in accordance with law and modification was not required. It is also stated that the petitioner has not been afforded any notice and opportunity before passing the order. Reliance is placed upon a decision of Apex Court in State of Punjab V. Rafiq Masih (White Washer) reported in 2015 (4) SCC 334. Paragraph 12 of the Judgement in Rafiq Masih (Supra) is extracted hereinafter:-
"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 harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
Learned Standing Counsel submits that the grievance of the petitioner shall be considered, by the authority concerned, in accordance with law.
Admittedly, petitioner has not been put to any notice before passing the order impugned, as is clear from the materials available on record. Petitioner is otherwise retired person and there is no allegation of misrepresentation or fraud on his part.
Considering the facts and circumstances of the case, this petition stands disposed of, permitting the petitioner to approach the respondent no. 2, alongwith certified copy of this order within a period of two weeks from today. Petitioner shall be at liberty to annex all materials, in support of his claim by treating the order impugned dated 10.10.2017 to be a notice to him. The authority concern shall pass a fresh order, after affording an opportunity of hearing, keeping in view the observations made by the Apex Court in Rafiq Mashih (supra), within a period of 3 months from the date of presentation of certified copy of this order. Claim of petitioner for release of withheld retiral dues shall also be examined by the authority concerned, within a further period of six weeks from the date of passing of the fresh order.
Order Date :- 27.3.2018 n.u.