Heard learned counsel for the petitioner Ms. Savita Jain, Advocate and Sri Rishabh Kapoor, learned counsel appearing for the respondents.
With the consent of learned counsels for the contesting parties, the instant writ petition is being finally disposed of.
Fact of the case is that the petitioner had superannuated from the post of 'Bill Clerk' in U.P. Jal Nigam on 30.09.2018.
Submission of the learned counsel for the petitioner is that on the basis of wrong fixation of the salary of the petitioner, certain recovery has been proposed to be made from the Gratuity of the petitioner. His next submission is that the petitioner is a Class-III employee, therefore, in view of the judgment of the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer), reported in [(2015) 4 SCC 334], the recovery of the amount cannot be made. He further submitted that the 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 is not justifiable.
Learned counsel appearing for the respondents 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 State of Punjab vs. 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."
Admittedly, there does not appear to be any case of misrepresentation or fraud on the part of the petitioner in the matter.
In such circumstances, the order impugned dated 10.07.2019 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.
As regards, the claim of interest on the delay dues, it would be open to the petitioner to raise such grievance before the appropriate forum.
Writ petition is accordingly disposed of.
Order Date :- 30.7.2019 A. Katiyar