Court No. - 34
Case :- SPECIAL APPEAL No. - 1144 of 2012 Appellant :- Sheo Kripal Sharma Respondent :- Director (Pension) And Others Counsel for Appellant :- P.R. Maurya Counsel for Respondent :- C.S.C.
Hon'ble Sudhir Agarwal,J. Hon'ble Shashi Kant,J.
1. Heard Sri Lallan Verma, Advocate, holding brief of Sri P. R. Mauray and learned Standing Counsel.
2. This intra Court appeal has arisen from the judgment dated 08.05.2012 passed by learned Single Judge, dismissing appellant's writ petition on the ground that he was not entitled to get selection grade and same was wrongly allowed to him in the year 1982. Therefore, deduction and recovery by order dated 26.04.1997 was justified.
3. It is contended that after 15 years recovery of Rs.30,875/- from appellant, though there was no fraud or misrepresentation on his part is unjust and not permissible. The said recovery was sought after retirement on 30.06.1996.
4. We find force in the submission.
5. Recently, Supreme Court in State of Punjab and others Vs. Rafiq Masih 2015 (4) SCC 334 has held 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."
(emphasis added)
6. In the present case, we find that alleged excess payment made to petitioners is not on account of any fault on their part. In our view, this case would fall in Claus (iii) and (iv) and it would not be equitable to recover such amount from them.
7. In view of above, the writ petition is allowed.
8. The judgment dated 08.05.2012 is hereby set-aside and order dated 26.04.1997 challenged in writ petition also is hereby set-aside.
Order Date :- 26.2.2018/VKG