Court No. - 16
Case :- WRIT - A No. - 8410 of 2018 Petitioner :- Rakesh Kumar Saxena And 3 Others Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Vishal Kashyap Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
While entertaining the writ petition following orders were passed on 22.3.2018:-
"It is stated that the order impugned has been passed without any notice and opportunity to the petitioners and that the order impugned otherwise is arbitrary, inasmuch as petitioners were entitled to Grade pay of Rs. 4600.
Learned Standing Counsel may obtain instructions in the matter. Put up as fresh on 30.3.2018.
Till the next date of listing, no recovery shall be made from the petitioners".
Although it is alleged by the learned Standing Counsel that the benefits, earlier extended to petitioner, was unauthorised, but there is no factual dispute to the petitioners plea that they have not been afforded any notice and opportunity before passing the order.
Reliance is placed by the learned counsel for the petitioners 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 petitioners shall be considered, by the authority concerned, in accordance with law.
Petitioners apparently have not been put to any notice before passing the orders impugned, as is clear from the materials brought on record. Petitioners are otherwise retired persons and there is no allegation of misrepresentation or fraud on their part.
In view of the admitted fact that no notice and opportunity had been afforded to the petitioners before passing the order impugned dated 24.1.2018, carrying civil consequences, writ petition stands allowed. Order dated 24.1.2018 is hereby quashed. Petitioners are permitted 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 24.1.2018 to be a notice to them. 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 2 months from the date of presentation of certified copy of this order.
Till a fresh decision is taken, as indicated above, no recovery shall be made against the petitioners. The order under challenge shall abide by the fresh order to be passed by the authority concerned.
Order Date :- 30.3.2018 n.u.