Allahabad High Court
Omprakash Mishra vs State Of U.P. Thru. Prin. Secy. ... on 3 March, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 5
Case :- WRIT - A No. - 2142 of 2023
Petitioner :- Omprakash Mishra
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Ayush Anubhag-1 Lko. And 5 Others
Counsel for Petitioner :- Pradeep Kumar Shukla
Counsel for Respondent :- C.S.C.
Hon'ble Vivek Chaudhary,J.
Heard learned counsel for the petitioner and the learned Standing Counsel.
The petitioner has approached this Court challenging the order dated 19.01.2022 and consequential order dated 08.04.2022 whereby recovery of Rs.3,01,228/- as alleged excess salary paid to the petitioner is sought to be recovered from the retiral dues of the petitioner and for mandamus directing the respondents to correctly fix the salary of the petitioner.
Learned counsel for the petitioner submits that the orders with regard to refixation of salary of the petitioner as well as for recovery are passed without giving any opportunity of hearing to the petitioner.
Learned counsel for the petitioner further submits that the impugned orders are also passed in violation of the judgment 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 petitioner submits that case of petitioner 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 Standing Counsel has opposed the petition on merit but could not dispute the aforesaid submission of learned counsel for the petitioner and that the impugned orders are passed without giving any opportunity of hearing to petitioner, 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 petitioner, the impugned orders dated 19.01.2022 and 08.04.2022 are patently illegal, arbitrary and uncalled for, therefore, the same are hereby set aside/quashed.
In case, respondents believe that case of petitioner falls within the exception of Rafiq Masih case (supra) or that his 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 petitioner 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 petitioner within six weeks, respondents shall also pay the amount already deducted from the petitioner under the impugned orders.
With the aforesaid, present writ petition is allowed.
.
(Vivek Chaudhary, J.)
Order Date :- 3.3.2023
Arjun/-
