Allahabad High Court
Madhan Singh vs State Of U.P. Thru. Prin. Secy. ... on 6 February, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 4
Case :- WRIT - A No. - 7543 of 2022
Petitioner :- Madhan Singh
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Vigilance Govt Of U.P. Lko And 4 Others
Counsel for Petitioner :- Santosh Mishra,Ram Nath Pandey
Counsel for Respondent :- C.S.C.
Hon'ble Vivek Chaudhary,J.
Heard learned counsel for petitioner and learned Standing Counsel for the State.
Petitioner, who is a Class-III employee, has approached this Court challenging the orders dated 2.8.2022 and 10.5.2022 on the ground that by the same, salary of the petitioner is refixed without giving any opportunity of hearing to him as well as order dated 16.8.2022, whereby recovery of an amount of Rs.4,07,602/- from the amount of gratuity, is being made by respondents from the petitioner.
Learned counsel for petitioner submits that there is no misrepresentation or fraud on the part of the petitioner rather the same has been voluntarily in a mala fide manner paid by the employer, so keeping in view the aforementioned facts, the same cannot be recovered from petitioner. He further submits that even before passing the impugned orders, no opportunity of hearing was given to the petitioner. The law in this regard is already 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 Standing Counsel from the records and impugned orders could not dispute the fact that the impugned orders are ex-parte orders and that the same appear to be hit by the judgment of Rafiq Masih case (supra).
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), the impugned orders dated 2.8.2022, 10.5.2022 and 16.8.2022 are patently illegal, arbitrary and uncalled for, therefore, the same are hereby set aside/quashed.
Since such recovery is not tenable in the eyes of law, therefore, if any amount is deducted, the same shall be paid to the petitioner. However, in case petitioner falls within the exception of Rafiq Masih case (supra), the respondents shall pass fresh order only after giving a notice and proper opportunity of hearing to the petitioner. Such a notice may be given by the respondents, if so required, to the petitioner within a period of six weeks from the date of production of a 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 the petitioner within six weeks, respondents shall also pay the amount already deducted from the petitioner under the impugned orders.
With the aforesaid, the writ petition is allowed.
.
[Vivek Chaudhary,J.]
Order Date :- 6.2.2023
Sachin
