Court No. - 34
Case :- WRIT - A No. - 32889 of 2004 Petitioner :- Smt. P.L.Sharma Respondent :- Accountant General -Ii U.P. Allahabad And Others Counsel for Petitioner :- A.C.Nigam Counsel for Respondent :- C.S.C.,Satish Chaturvedi
Hon'ble Sudhir Agarwal,J.
1. Heard Shri A. C. Nigam, learned counsel for petitioner, Shri Satish Chaturvedi, learned counsel for respondent No. 1 and learned Standing Counsel for State.
2. After retirement of petitioner impugned notices have been issued alleging that some excess amount was paid to the petitioner therefore, should be recovered. It is contended that after retirement and that too after four years thereafter, the impugned order has been issued seeking recovery on the ground that excess amount has been paid though it is not the case of the respondent that there was any fraud or misrepresentation on the part of petitioner.
3. Learned counsel for petitioner has placed reliance upon the judgement of Apex Court in case of State of Punjab and others Vs. Rafiq Masih 2015 (4) SCC 334 holding that it is not possible to postulate all situations of hardship where payments mistakenly made by an employer, would not be recovered but some such situations are elaborated therein as under:
"(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."
4. In the present case, I find that alleged excess payment made to petitioners is not on account of any fault i.e. fraud or misrepresentation on their part. In my view, this case would fall in Clauses (iii) and (v) and it would not be equitable to recover such amount from them.
5. Writ petition is allowed with cost of Rs. 2,500/-.
Order Date :- 26.7.2018 Ravi Prakash