Allahabad High Court
Sanjay Kumar Gupta vs State Of U.P.Thru.Addl.Chief ... on 19 January, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 4
Case :- WRIT - A No. - 24920 of 2020
Petitioner :- Sanjay Kumar Gupta
Respondent :- State Of U.P.Thru.Addl.Chief Secy.Rural Development And Ors.
Counsel for Petitioner :- Karuna Kant Gupta
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 and was paid certain extra salary, is burdened with the impugned orders dated 24.7.2020, 28.5.2020 and 30.4.2020 passed by respondent no.4, whereby his representation is rejected and a direction for recovery is made.
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 order, no opportunity of hearing was given to the petitioner. He submits that the case of the petitioner is squarely covered by the judgment of the Apex Court in the case of 'State of Punjab and others Vs. Rafiq Masih (White Washer) and others, 2015 (4) SCC 334', and none of the exception of the same is referred to, in the impugned orders. Paragraph-18 of the said judgment 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."
A perusal of the impugned orders show that the same are passed ignoring the judgment of Rafiq Masih (supra) to the extent of recovery from the petitioner.
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 24.7.2020, 28.5.2020 and 30.4.2020 are patently illegal, arbitrary and uncalled for, therefore, the same are hereby set aside/quashed to the extent of recovery 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. 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 respondent no.4, if so required, to the petitioner within a period of one month 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 one month from the date of issuance of notice. In case such a notice is not issued to the petitioner within one month, 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 :- 19.1.2023
Sachin
