Allahabad High Court
Ram Bux Sen vs State Of U.P.Thru ... on 28 February, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 5
Case :- WRIT - A No. - 2454 of 2020
Petitioner :- Ram Bux Sen
Respondent :- State Of U.P.Thru Prin.Secy.Rural Development Deptt. And Ors.
Counsel for Petitioner :- Ninnie Shrivastava
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 order dated 26.12.2019, whereby certain amount is directed to be recovered from the petitioner on the ground that his salary is wrongly calculated.
Learned counsel for petitioner submits that the petitioner had retired in the year 2011 from a Class-III post. She further 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. She further submits that the case of the petitioner is squarely covered by a judgment of the Supreme 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 submits that there is no dispute that the amount is wrongly paid to the petitioner.
Thus, even presuming the stand of the State is taken to be correct, in case any amount is paid in excess, the same cannot be recovered from the petitioner. The State has failed to show that the petitioner has given any undertaking for recovery of the said amount and there is no case set up by the State that the matter falls within the exception of Rafiq Masih (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 order dated 26.12.2019 is patently illegal, arbitrary and uncalled for, therefore, the same is hereby set aside/quashed. No recovery shall be made from the petitioner.
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.
With the aforesaid, the writ petition is allowed.
.
[Vivek Chaudhary,J.]
Order Date :- 28.2.2023
Sachin
