Allahabad High Court
Ram Kinkar Singh vs State Of U.P. And 3 Others on 2 January, 2023
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 36
Case :- WRIT - A No. - 21337 of 2022
Petitioner :- Ram Kinkar Singh
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Mohd. Parvez,Mohammad Fahad
Counsel for Respondent :- C.S.C.
Hon'ble Neeraj Tiwari,J.
Heard learned counsel for petitioner and learned standing counsel for State-respondents.
Learned counsel for the petitioner submitted that petitioner is working on the post of Sub Inspector of Police and is going to retire from service on 31.01.2023. Recovery order has been issued on the ground that he has been made excess payment. He next submitted that in light of judgment of Apex Court in the matter of State of Punjab and others Vs. Rafiq Masih: 2015 (4) SCC 334, in case of incorrect fixation of pay scale, any payment is made, no recovery can be made from Class-III and Class-IV employee. In the present case, undisputedly, petitioner is Class-III employee and he has not obtained excess payment by concealment of any fact or any fraud. Therefore, impugned orders dated 16.10.2022 and 18.10.2022 are liable to be bad.
Learned Standing Counsel though opposed, but could not dispute the facts as well as legal submission made by learned counsel for the petitioner.
I have considered the rival submissions advanced by the learned counsel for the parties and perused the records 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."
Undisputedly, case of petitioner is squarely covered with the judgment of Rafiq Masih (supra) and petitioner was not responsible for fixation of incorrect pay scale and consequently for excess payment.
Therefore, under such facts and circumstances of the case, theorders dated 16.10.2022 and 18.10.2022 are hereby quashed and writ petition is allowed. No order as to costs.
Senior Superintendent of Police, Etawah- Respondent no.4 is directed to pay Rs. 20,000/- to petitioner, which is deducted from salary of December, 2022, maximum within three weeks from the date of production of certified copy of this order.
In case, the amount of Rs.20,000/- is not released within the aforesaid period, same shall carry simple interest @10% per annum from the date the amount due till the date of its payment.
However, respondents are at liberty to file a recall application if this order is obtained by the petitioner by concealing material fact.
Liberty is also given to State-authorities to conduct inquiry in the matter and to fix the responsibility for excess payment and recover the same from the Officers/employees, who are responsible for the same.
Order Date :- 2.1.2023
Arvind
