Allahabad High Court
H.C. Dinesh Kumar Yadav Pno. No. ... vs State Of U.P. Thru. Prin. Secy. ... on 2 February, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 4
Case :- WRIT - A No. - 817 of 2023
Petitioner :- H.C. Dinesh Kumar Yadav Pno. No. 062430483 And 4 Others
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Home, Civil Sectt. U.P. Lko. And 2 Others
Counsel for Petitioner :- Anupam Shukla
Counsel for Respondent :- C.S.C.
Hon'ble Vivek Chaudhary,J.
Heard learned counsel for petitioners and learned Standing Counsel for the State.
Present writ petition is filed by the petitioners challenging the orders dated 05.09.2022 and 01.11.2022 passed by respondent no. 2 and 3 respectively by which the amount of Rs.15000/- has been recovered from petitioners salary every month.
In the present case the benefit of pay scale has been extended to the petitioners by the Department itself, without any representation/misrepresentation on the part of the petitioners, therefore, the petitioners may not be subjected to the recovery proceedings.
While challenging the impugned orders, learned counsel for petitioners submits that the impugned orders are exparte orders passed without giving any opportunity of hearing to the petitioner. Since, neither any fraud is played by the petitioners nor they have given any undertaking for recovery of salary paid to them by the respondents, no recovery can be made from the petitioners. 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 petitioners submits that case of petitioners does not fall within the exception of the said judgment and, hence, being covered by the Rafiq Masih case (supra), the impugned orders are liable to be set aside.
Learned Additional Chief Standing Counsel has opposed the petition on merit and submits that the deductions are being made on the ground that one incorrect increment was given to the petitioners. However, he could not dispute the aforesaid submission of learned counsel for the petitioners and that the impugned orders are passed without giving any opportunity of hearing to petitioners, however, he tried to justify the impugned action.
Having heard learned counsel for the parties and having perused the material available on record, I am of the opinion that in view of the dictum of the Hon'ble Apex Court in re; Rafiq Masih (supra) as well as fact that the impugned orders are passed without giving any opportunity of hearing to petitioners, the impugned order dated 05.09.2022 and 01.11.2022 are patently illegal, arbitrary and uncalled for, therefore, the same are hereby set aside/quashed.
In case, respondents believe that case of petitioners falls within the exception of Rafiq Masih case (supra) or that their 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 petitioners 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 petitioners within six weeks, respondents shall also pay the amount already deducted from the petitioners under the impugned orders.
With the aforesaid, present writ petition is allowed.
Order Date :- 2.2.2023
Arti/-
[Vivek Chaudhary,J.]
