Ali Mohd. vs State Of U.P. And 3 Others
2022 Latest Caselaw 14345 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 34
 

 
Case :- WRIT - A No. - 15331 of 2022
 

 
Petitioner :- Ali Mohd.
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Ved Prakash Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Neeraj Tiwari,J.

Heard learned counsel for the petitioner and learned Standing Counsel for State- respondents.

Learned counsel for the petitioner submitted that impugned order has been passed on the ground that due to incorrect pay fixation, excess payment was made to the petitioner. He next submitted that as per impugned order, excess payment was made w.e.f. 27.07.2011 whereas in light of judgement of Apex Court in the matter of State of Punjab and others Vs. Rafiq Masih: 2015 (4) SCC 334, no recovery can be made from the employees when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. Therefore, impugned recovery order dated 26.08.2022 is bad and liable to be set aside.

Learned Standing Counsel though opposed but could not dispute the legal submission raised by learned counsel for the petitioner.

I have considered the rival submissions raised by the parties and perused the judgment of Apex Court in the matter of State of Punjab and others (supra). Paragraph 18 of the said judgment is being quoted herein below;

"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."

From the perusal of paragraph 18 (iii) of the aforesaid judgment, it is apparently clear that no recovery can be made after five years in case excess payment was made due to incorrect fixation of pay scale.

Matter requires consideration.

Learned Standing Counsel prays for and is granted four weeks time to file counter affidavit. Rejoinder affidavit may be filed within two weeks thereafter.

List this case on 07.12.2022 before appropriate Bench.

Until further order of this Court, no recovery shall be made from the petitioner pursuant to impugned order dated 26.08.2022.

Further respondents are directed to release the post retiral dues of the petitioner forthwith.

Order Date :- 19.10.2022

P Kesari