The Hon'ble The Chief Justice Satish Chandra Sharma
and
The Hon'ble Sri Justice A. Rajasheker Reddy
Writ Appeal No.64 of 2021
Judgment: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)
The present appeal is arising out of Order
dated 24.12.2019, passed by the learned Single Judge in
W.P.No.8942 of 2018.
2. The facts of the case reveal that respondent
No.1/employee has attained the age of superannuation on 31.08.2017 as Sub Inspector of Police and after his retirement, an order was passed in the matter of pay fixation and consequential recovery to the tune of Rs.5,04,553/- was made. As it was recovery in respect of Class-III employee that too, after retirement, the learned Single Judge, keeping in view the judgment delivered in the case of State of Punjab and others vs. Rafiq Masih (White Washer) etc1., has quashed the recovery and directed the appellants/Department to refund the amount.
3. In the present case, it is an undisputed fact that the employee was not at fault in the matter of erroneous pay fixation and it was the mistake of the Department, on (2015) 4 SCC 334 1 2 account of which, the employee has received more emoluments than his entitlement. The issue of recovery in respect of retired employee was considered by the Apex Court in the case of High Court of Punjab and Haryana and others vs. Jagdev Singh2. Honble Supreme Court, after taking into account the judgment delivered in the case of State of Punjab and others vs. Rafiq Masih (White Washer) etc. (1 supra), has laid down the following situation where recovery by the employer would be impermissible. Paragraph 10 of the said judgment is reproduced as under:
"10. In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc., this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer 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.2
Civil Appeal No.3500 of 2006 dt.29.07.2016 3
(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 supplied)."
4. Aforesaid judgment makes it very clear that recovery from employees belonging to Class-III and Class-IV cannot be made.
5. In the present case, the employee in question is a Class- III employee. There was no misrepresentation on the part of the employee in the matter of pay fixation. The recovery is bound to cause undue hardship to him and the excess amount has been paid to him for a period in excess of five years before the recovery order was issued.
6. Resultantly. this Court is of the considered opinion that the learned Single Judge was justified in quashing recovery. 4 Therefore, the amount recovered shall be refunded back positively within sixty days to respondent No.1/employee. If the amount is not refunded within sixty days from today, the same shall carry interest @ 5% p.a., from the date of recovery till it is refunded to respondent No.1/employee. However, pay fixation made by the appellants/Department is upheld.
7. Subject to the above direction, the Writ Appeal is dismissed. Consequently, Interlocutory Applications, pending if any, stand dismissed.
_______________________ Satish Chandra Sharma, CJ ____________________ A. Rajasheker Reddy, J 08.11.2021 lur