For Petitioner : Mr. Praveen Dhurandhar, Advocate
For Respondents/State : Mr. Topilal Baretha, Panel Lawyer
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
1. The petitioner has filed this petition seeking the following relief(s):-
"10.1 That, this Hon'ble Court may kindly be pleased to set-
aside the impugned order dated 03-05-2017 (Annexure P-1)
passed by the respondent No. 5, by which without affording
opportunity of hearing amount of Rs.1,41,907/- has been
directed to be recovered from her salary, which is creating
hardship for the petitioner, who is a low paid employee.
10.2 That, this Hon'ble Court may kindly be pleased to
quash the order dated 22-03-2017 (Annexure P-4), which has
been passed without affording opportunity of hearing, where
the pay scale of petitioner has been amended.
10.3 That, this Hon'ble Court may kindly be pleased to
direct the respondent authorities to refund the recovered
amount from the salary of petitioner and direct to recover the
same from the responsible respondent authorities.
10.4 That, the Hon'ble Court may kindly be pleased to
grant any other relief, as it may deem-fit and appropriate."
2. Learned counsel appearing for the petitioner would submit that the
petitioner was appointed to the post of Head Constable (M) on
compassionate grounds after the death of her husband. He would
contend that respondent No. 5 issued the order of recovery on
03.05.2017 to the tune of Rs.1,41,907/- on the ground that the pay
scale of the petitioner was wrongly fixed at a higher side by the
department. He would further submit that according to the reply filed by
the State, due to a mistake of the dealing clerk, the pay scale of the
petitioner was wrongly fixed at a higher side. He would also submit that
there was no misrepresentation on the part of the petitioner and the
higher pay scale was granted by the department to the petitioner from
01.07.2009 and it continued for more than 05 years and the order of
recovery has been passed on 03.05.2017 after a lapse of 08 years.
Thus, he would pray to quash the order. In support thereof, he placed
reliance on the judgment passed by the Hon'ble Supreme Court in the
matter of State of Punjab and Others Vs. Rafiq Masih (White
Washer) and Others, 2015 AIR SCW 501.
3. On the other hand, learned Panel Lawyer appearing for the State
would oppose. He would submit that the excess payment was made to
the petitioner due to the wrong fixation of salary and when the
department detected this mistake, the order impugned was issued by
respondent No. 5. He would also submit that the petition filed by the
petitioner deserves to be dismissed.
4. Heard learned counsel for the parties.
5. Admittedly, the pay scale of the petitioner was fixed at a higher side by
the department itself in the month of July 2009 and it continued till
01.07.2015. The order of recovery has been issued on 03.05.2017.
6. From a perusal of the pleadings made in the writ petition and return, it
is apparent that there was no misrepresentation on the part of the
petitioner; the petitioner is a Class-III employee; the mistake was
detected by the department after a lapse of 08 years, therefore, in the
opinion of this Court, a good case is made out to quash the order of
recovery.
7. The Hon'ble Supreme Court in the matter of of Rafiq Masih (supra)
while dealing with a similar issue held as under:-
"(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."
8. Taking into consideration the facts of the present case and the law laid
down by the Hon'ble Supreme Court in the matter of Rafiq Masih
(supra), the order dated 03.05.2017 (Annexure P/1) is hereby
quashed. The respondents are directed to refund the recovered
amount, if any.
9. With the aforesaid observation(s)/direction(s), the present petition is
disposed of.
Sd/-
(Rakesh Mohan Pandey)
Judge
vatti
