Allahabad High Court
Kushal Pal Singh Pno No.840772378 vs State Of ... on 2 February, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 4
Case :- WRIT - A No. - 4334 of 2021
Petitioner :- Kushal Pal Singh Pno No.840772378
Respondent :- State Of U.P.Thru.Prin.Secy./Addl.Chief Secy.Home And Ors.
Counsel for Petitioner :- Rajendra Prasad Shukla,Pallavi Dubey
Counsel for Respondent :- C.S.C
Hon'ble Vivek Chaudhary,J.
Heard learned counsel for the petitioner and the learned Standing Counsel for the State.
By means of this petition, learned counsel for petitioner has placed grievance to the effect that petitioner, who was working on the post of Head Constable (Class-III Employee) retired from services on 31.08.2020. The petitioner was extended certain benefits during his service tenure by the department itself without any misrepresentation on part of the petitioner. By the impugned order dated 28.09.2020 respondents, holding that certain excess salary was paid to the petitioner while in service, have directed for recovery/adjustment of the same from the retiral benefits of the petitioner.
While challenging the impugned order, learned counsel for petitioner submits that the impugned order are ex parte orders passed without giving any opportunity of hearing to the petitioner. Since, neither any fraud is played by the petitioner nor he has given any undertaking for recovery of salary paid to him by the respondents, no recovery can be made from the petitioner. The law in this regard is well settled by Hon'ble Apex Court in the case of 'State of Punjab and others Vs. Rafiq Masih (White Washer) and others, 2015 (4) SCC 334', paragraph-18 of which provides:-
"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."
Learned counsel for petitioner submits that case of petitioner does not fall within the exception of the said judgment and, hence, being covered by the Rafiq Masih case (supra), the impugned order are liable to be set aside.
Learned Standing Counsel from the records and impugned order could not dispute the fact that the impugned orders are ex-parte order and that the same appear to be hit by the judgment of Rafiq Masih case (supra).
Since, the impugned orders are ex parte orders, the same cannot stand and are set aside.
In case, respondents believe that case of petitioner falls within the exception of Rafiq Masih case (supra) or that his salary was wrongly paid in excess and need for refixation for future payment is required, they may pass fresh order only after giving a notice and proper opportunity of hearing to petitioner.
Such a notice may be given by respondents, if so required, to the petitioner within a period of six weeks from the date of production of certified copy of this order and the entire process shall also be completed within a further period of two months from the date of issuance of notice. In case such a notice is not issued to petitioner within six weeks, respondents shall also pay the amount already deducted from the petitioner under the impugned orders.
With the aforesaid, present writ petition is allowed.
(Vivek Chaudhary,J.)
Order Date :- 2.2.2023
Arjun/-
