Heard learned counsel for the petitioner and Sri Rishabh Kapoor, learned counsel appearing for all the respondents.
Under challenge is the order dated 21.05.2019, a copy of which is annexure 1 to the petition by which while paying the leave encashment to the petitioner, an amount of Rs. 1,14,294/- has been directed to be deducted and adjusted from the amount of leave encashment.
Submission of the learned counsel for the petitioner is that on the basis of wrong fixation of the salary of the petitioner, certain recovery is sought to be made from the leave encashment as due to the petitioner. The submission is that the petitioner being a Class-III employee working on the post of Tax Collector, therefore, in view of the judgment of the Hon'ble Supreme Court in the case of State of Punjab and ors Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334 no recovery of the amount can be made. It is further submitted that petitioner has not committed fraud nor he misrepresented the fact before the respondents in fixation of salary, therefore, the recovery proceeding initiated against the petitioner are not justifiable.
Learned counsel appearing for the respondents Sri Rishabh Kapoor states that the grievance of the petitioner shall be examined by the authority concerned afresh in accordance with law.
Considering the hardship which may be caused to a class III and class IV employee if recovery is affected from such employee, the Hon'ble Supreme Court in the case of Rafiq Masih (supra) has been pleased to lay down following principles in para 18:-
"18. 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."
There does not appear to be any case of misrepresentation or fraud on part part of the petitioner in the matter. In such circumstances, the order impugned cannot be sustained and is set aside. The matter is remitted back to the authority concerned to examine the matter, afresh, and pass appropriate order, keeping in view the principles laid down by the Apex Court in the case of Rafiq Masih (supra), within a period of three months from the date of presentation of certified copy of this order. Whatever retiral dues are found payable shall be released to the petitioner within a further period of two months.
Writ petition is accordingly disposed of.
Order Date :- 29.8.2019 Pachhere/-