Court No. - 6
Case :- WRIT - A No. - 5253 of 2021 Petitioner :- Jai Prakash Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Bramh Narayan Singh Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
The present writ petition has been filed challenging the order dated 11.2.2021 whereby the pension of the petitioner has been refixed and the amount of Rs. 6,53,869/- allegedly paid on account of wrong fixation of salary has been recovered from the dues of the petitioner.
The neat contention of counsel for the petitioner is that the recovery for the reasons as disclosed is not permissible in the light of judgement of Hon’ble the Supreme Court in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer); (2015) 4 SCC 334 wherein this Court has observed in para 12 which 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 harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
A perusal of the counter affidavit, on record, shows that the recovery is in pursuance of wrong fixation of salary starting from the period 1999 onwards. Thus, the recovery as claimed from the petitioner pertains to wrong payment made on account of wrong fixation of salary. The case is squarely covered by Para 12 (iii) of the judgement of the Supreme Court contained in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) (supra). As such, there is no hesitation in holding that the recovery of the said amount from the petitioner is bad in law and contrary to the judgement of the Supreme Court in the case of State of Punjab & Ors.
Respondents are directed to refund of amount of Rs. 6,53,869/- to the petitioner within a period of three months from today. In case the amount is not paid within three months, as directed above, the respondents shall also pay the interest at the rate of 6% per annum, however, if the amount is paid within three months no interest will be given to the petitioner.
Accordingly, the writ petition is allowed in terms of the said order.
Copy of the order downloaded from the website of Allahabad High Court shall be accepted/treated as certified copy of the order.
Order Date :- 22.9.2021 Puspendra