Court No. - 58
Case :- WRIT - A No. - 17877 of 2018 Petitioner :- Vir Bahadur Singh And 11 Others Respondent :- State Of U.P. And Another Counsel for Petitioner :- Anil Pratap Singh Raghav Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioner nos. 1 to 9 are working as Foresters in the Forest Department of the State; while, the petitioner nos. 10 to 12 are Forest Guards. They are aggrieved by the order dated 18.07.2018 of the Divisional Director, Social Forestry, Bulandshahr Division, Bulandshahr, which records that petitioners have unauthorizedly been granted benefit of 3rd financial upgradation under the ACP scheme. A direction has, therefore, been issued to redetermine the petitioners' pay and to recover the excess amount paid to them. The order is challenged on the ground that no opportunity of hearing has been given to the petitioners and that, there was, otherwise, no misrepresentation on their part. Reliance is placed upon a judgment of Apex Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 332; wherein, in para 12, following observation has been made:
"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 order dated 18.07.2018 is merely a direction and that, appropriate authority shall proceed to pass orders only after affording an opportunity of hearing to the petitioners.
In the facts and circumstances of the case, noticed above, this petition stands disposed of by providing that before actual orders of recovery are passed against any of the petitioners, they shall be afforded an opportunity of hearing. The authority concerned shall also keep in view the principles laid down by the Apex Court in Rafiq Masih (supra) while passing orders in compliance of the directions issued on 18.07.2018.
Order Date :- 23.8.2018 Amit Mishra