Allahabad High Court
Amarjit Singh And Another vs State Of U.P. And 3 Others on 12 March, 2021
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 36
Case :- WRIT - A No. - 3932 of 2021
Petitioner :- Amarjit Singh And Another
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Vineet Kumar Singh
Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Vineet Kumar Singh, learned counsel for the petitioners and Shri Devesh Vikram, learned Standing Counsel for the respondents.
The petitioners are before this Court challenging the validity of the impugned order dated 18.12.2020 passed by the District Magistrate, Sonebhadra, by which he has rejected the representation of the petitioners.
It appears that the petitioner no.1 was appointed on the post of Survey Lekhpal on compassionate ground on 30.12.2006. Thereafter, he was granted promotion to the post of Survey Kanoongo on 26.11.2019. The petitioner no.2 was initially appointed on the post of Survey Chainman on 04.12.1987. He was promoted to the post of Survey Lekhpal on 01.8.2003 and thereafter, he was promoted to the post of Survey Kanoongo on 05.3.2019. The promotions of the petitioners on the post of Survey Kanoongo were set aside by the District Magistrate, Sonebhadra on 13.3.2020 and they have been reverted back to the post of Survey Lekhpal.
Aggrieved with the said order, the petitioners approached this Court by preferring Writ A No.7999 of 2020 with the grievance that without passing any order, the authorities started deduction of Rs.2000/- from their salary on the ground that earlier, certain excess payment was made to them. It was stated in the said writ petition that neither any surplus payment was made, nor any reason exists for deduction to be made from their salary. Reliance was also placed upon the judgment of the Apex Court in State of Punjab and others Vs. Rafiq Masih (white washer) and others, 2015 (4) SCC 334 in order to contend that petitioners being Class III employees, their salary ought not to be deducted without any fault of the employee. The aforesaid writ petition was disposed of by this Court on 01.10.2020, directing the District Magistrate, Sonbhadra to decide the claim of the petitioners within two months, keeping in view the principles laid down by the Apex Court in the case ofState of Punjab vs. Rafiq Masih (supra). By the order impugned dated 18.12.2020 the District Magistrate, Sonbhadra has rejected the representation of the petitioners.
In this backdrop, learned counsel for the petitioners submits that there is no allegation of misrepresentation or fraud practiced by the petitioners in the matter. Submission is that petitioners are class III employees and the amount already paid to them, in such circumstances, ought not to be recovered in view of the law laid down by the Apex Court in the case of State of Punjab vs. Rafiq Masih (supra) without any opportunity of hearing. He further makes submission that petitioners' grievance is to be examined by the authority concerned, afresh, in accordance with law.
So far as the factual and legal aspect of the matter is concerned, the same is not disputed by learned Standing Counsel.
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 part of the petitioners in the matter and while passing the order impugned the respondent authority has not taken any consideration of the law laid down by the Apex Court in State of U.P. vs. Rafiq Masih (supra). In such circumstances, the order impugned cannot sustain and the same is set aside.
Consequently, the writ petition is allowed and the matter is relegated to the authority concerned to examine the matter afresh, keeping in view the principles laid down by the Apex Court in State of U.P. vs. Rafiq Masih (supra), within a period of two months from the date of presentation of a copy of this order.
Order Date :- 12.3.2021
RKP
