Court No. - 16
Case :- WRIT - A No. - 8605 of 2018 Petitioner :- Shri Ram Pratap Maurya Respondent :- State Of U.P. And Another Counsel for Petitioner :- Jamil Ahamad Azmi Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioner is aggrieved by an order dated 15.2.2018, whereby his pay, determined earlier, has been modified unilaterally, without affording any notice and opportunity to him. The modification has been made in petitioner's pay since 1996. Grievance is that the modification made in the pay scale of petitioner is contrary to the applicable Government Orders. 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.
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 15.2.2018 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). The order under challenge shall abide by the fresh order to be passed by the authority concerned. Till the fresh order is passed, no recovery shall be made from the petitioner pursuant to order dated 15.2.2018.
Order Date :- 27.3.2018 n.u.