Virendra Lal And Another vs State Of U.P. And 2 Others
2023 Latest Caselaw 7800 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 32
 

 
Case :- WRIT - A No. - 17096 of 2014
 

 
Petitioner :- Virendra Lal And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Santosh Srivastava,Shahi Nandan
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vivek Chaudhary,J.

Heard learned counsel for petitioners and learned Standing Counsel for the State.

Petitioners were working as Class-III employee in Nagar Panchayat, Meh Nagar, Azamgarh and petitioner no.1 retired on 31.12.2013 and petitioner no.2 retired on 28.02.2013. They have approached this Court challenging the orders dated 23.05.2013 and 30.01.2014 whereby the deductions have been made from their salary.

Learned counsel for petitioners submits that although the impugned orders dated 23.05.2013 and 30.01.2014 are ex parte order which were passed without giving any opportunity of hearing to the petitioners. He further submits that the present matter is squarely covered by the judgment of Hon'ble Apex Court passed in the case of 'State of Punjab and others Vs. Rafiq Masih (White Washer) and others, 2015 (4) SCC 334' and the petitioners being class-III employees are also entitled for the benefit granted by the State Government.

The law in this regard is well 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 order and that the same appears to be hit by the judgment of Rafiq Masih case (supra).

Having heard learned counsel for both 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 dated 23.05.2013 and 30.01.2014 are hereby set aside/quashed.

Respondent no.4 ? Deputy Director, Sthaniya Nidhi Lekha Pariksha Vibhag, Uttar Pradesh, Azamgarh Division, Azamgarh is directed to ensure refund of the amount to the petitioners with interest at the rate of 6% within a period of four months from the date of production of certified copy of this order.

With the aforesaid directions, the writ petition is allowed.

Order Date :- 17.3.2023

Atul

[Vivek Chaudhary,J.]