Court No. - 58
Case :- WRIT - A No. - 19952 of 2018 Petitioner :- Jhulan Prasad Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Suresh Kumar Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
An order dated 30.05.2018, passed by the Land Protection Officer, Gorakhpur, is challenged in this petition; whereby, recovery of a sum of Rs. 1,05,017/- is proposed to be made from the petitioner.
It appears that petitioner was working as Senior Technical Assistant in the Department and has retired on 30.06.2015. While petitioner was in service, neither any disciplinary action was ever initiated against him, nor he was held guilty of any misconduct or of causing any financial loss to the State.
Submission is that without holding any inquiry and without an opportunity of hearing, the authorities should not have unilaterally determined his liability and thereby, direct recovery to be made from the petitioner. It is also contended that principles of natural justice stand violated, otherwise.
Learned standing counsel submits that authorities concerned be permitted to revisit the matter, in accordance with law.
The Apex Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 332 has held that recovery from the employee would be impermissible in law after his retirement, while payments have been made mistakenly by an employer. Para 12 of the aforesaid judgment reads 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."
From the records, it, otherwise, appears that neither any notice has been issued to the petitioner, nor his liability has been determined by following the procedure known to him. In such circumstances, direction issued to recover the amount from the petitioner cannot be sustained.
In the facts and circumstances of the case, noticed above, this petition stands disposed of with a direction upon the authority concerned to examine the petitioner's grievance in light of principles laid down by the Apex Court in Rafiq Masih (supra) by passing a fresh reasoned order within a period of three months from the date of presentation of a certified copy of this order.
In order to facilitate fresh consideration of the case, the impugned order dated 30.05.2018 is hereby quashed.
Order Date :- 18.9.2018 Amit Mishra