Court No. - 34
Case :- WRIT - A No. - 24751 of 2011 Petitioner :- Union Of Indian Thru G.M. N.E.Railway Gorakhpru And Others Respondent :- Vishwanath And Another Counsel for Petitioner :- A.K.Gaur,Devendra Tripathi Counsel for Respondent :- S.C.
Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.
1. Heard Sri Devendra Tripathi, learned counsel for petitioner and perused the record.
2. This writ petition under Article 226 of Constitution of India has come up against judgment and order dated 05.01.2011 passed by Central Administrative Tribunal, Allahabad Bench Allahabad (hereinafter after referred to as "Tribunal") in Original Application (hereinafter referred to as "O.A.") No.70 of 1991 whereby Tribunal has allowed O.A. filed by Vishwanath-applicant/ respondent-1 and directed that no recovery from applicant-respondent shall be made in respect of alleged excess payment since payment was not made on account of any fraud or misrepresentation on the part of applicant- respondent-1.
3. It is evident from record that orders were passed on 28.12.2007 and 13.3.2008 effecting recovery from pension of respondent-1 alleging that long back his basic pay was wrongly fixed.
4. Counsel for petitioner when questioned could not dispute that issue with regard to such recovery, when permissible, is now concluded by Supreme Court in State of Punjab and others Vs. Rafiq Masih 2015
(4) SCC 334 whereby Court 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:
- 2 -
"(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."
5. Learned counsel for petitioner admitted that matter in the present writ petition is squarely covered by aforesaid judgment and the view taken by Tribunal cannot be faulted.
6. Writ petition is accordingly dismissed.
7. Interim order, if any, stands vacated.
Order Date :- 28.11.2019 KA