Allahabad High Court
Raj Kumar Sharma vs The State Of U.P. And 3 Others on 27 April, 2023
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 38
Case :- WRIT - A No. - 5877 of 2023
Petitioner :- Raj Kumar Sharma
Respondent :- The State Of U.P. And 3 Others
Counsel for Petitioner :- Akhilesh Kumar Ojha
Counsel for Respondent :- C.S.C.
Hon'ble Saurabh Srivastava,J.
1. Heard Sri Akhilesh Kumar Ojha, learned counsel for the petitioner and learned Chief Standing Counsel appearing for the State-respondents.
2. The present petition has been filed seeking the following relief:-
i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order/Notice dated 12.3.2023 passed by respondent no.4/Senior Superintendent of Police, Moradabad District Moradabad by which issued a notice to the petitioner for recovery of an amount of Rs.7,31,406/- for the post retiral benefit of the petitioner on the ground that some excess salary has been paid to the petitioner (Annexure No.1 to the writ petition).
3. It is the case of the petitioner that the petitioner was retired on 30.06.2022 from the post of Sub Inspector (Civil Police), Moradabad and after his retirement, a notice dated 12.3.2023 has been issued for payment of Rs.7,31,406/- on the ground that the excess payment has been made to the petitioner. The said order is impugned in the writ petition.
4. Learned counsel for the petitioner has placed reliance upon the judgment of the Hon'ble Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) reported in 2015 (4) SCC 334 wherein it has been held that no recovery can be effected against Class-III Employee after his retirement as there was no fraud on the part of the petitioner in receiving the excess payment, which has been paid to the petitioner by the respondent and, therefore, the recovery of the said amount is illegal and not sustainable in the eye of law.
5. Learned Standing Counsel vehemently opposed the prayer as made in the petition but could not dispute the facts so argued by the learned counsel for the petitioner as well as legal submission.
6. I have considered the rival submissions advanced by the learned counsel for the parties and perused the record as well as impugned order. Facts of the case are undisputed. Apex Court in the case of Rafiq Masih (supra) while dealing with such dispute, had framed following guidelines:-
"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."
7. Case of petitioner is squarely covered with the judgment of Rafiq Masih (supra) and as such, the petitioner is not responsible for getting excess payment.
8. Thus, for the reasons stated above, the Notice dated 12.3.2023 passed by respondent no.4/Senior Superintendent of Police, Moradabad is set-aside and the respondent no. 4 is directed to release the aforesaid amount of Rs.7,31,406/- if deducted, expeditiously, within a period of two months from today.
9. It is, however, made clear that in case, if the said amount has been deducted and not released in favour of the petitioner within the aforesaid period, the amount aforesaid shall carry simple interest @ 12% per annum from the date amount is due till the date of its payment.
10. Subject to the aforesaid, the wit petition is allowed.
Order Date :- 27.4.2023
Rakesh
