Punjab-Haryana High Court
Ved Parkash Taneja vs State Of Punjab And Others on 5 July, 2022
CWP-25484-2017 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(227) CWP-25484-2017
Date of Decision : July 05, 2022
Ved Parkash Taneja .. Petitioner
Versus
State of Punjab and others .. Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Harbans Lal Sharma, Advocate, for the petitioner.
Mr. Navdeep Chhabra, Deputy Advocate General, Punjab.
HARSIMRAN SINGH SETHI J. (ORAL)
In the present petition, the challenge is to the order dated
07.07.2017 (Annexure P-3) by which, a recovery of Rs.2,39,921/- has been
done from the leave encashment to be paid to the petitioner.
Learned counsel for the petitioner argues that the petitioner,
who was to attain the age of superannuation on 31.10.2015, was granted
extension for a period of one year and was retired on 31.10.2016. During
the extended period of service, the petitioner availed the ex-India leave for a
period of one month but he fell sick and could not come back to join service
within the time framed and thereafter, the petitioner was charge-sheeted for
the said alleged misconduct on 12.05.2016. Ultimately, the said charge-
sheet was dropped on 03.05.2017 and the retiral benefits were released to
the petitioner including 300 days of leave encashment. Learned counsel for
the petitioner submits that in July, 2017, the respondents decided to recover
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a sum of Rs.2,39,921/- on the ground that the petitioner was not entitled for
300 days leave encashment as, the period spent by the petitioner on leave in
excess of the granted leave during ex-India leave, is to be deducted from
300 days leave encashment admissible to the petitioner and the said amount
has been ordered to be recovered from the petitioner, which cannot be done
by the respondents keeping in view the judgment of the Hon'ble Supreme
Court of India in State of Punjab and others Vs. Rafiq Masih (White
Washer) etc., 2015(1) S.C.T., 195.
Upon notice of motion, the respondents have filed the reply
wherein, it has been stated that the petitioner was extended 300 days leave
encashment inadvertently whereas, he was only entitled for leave
encashment for a period of 177 days only keeping in view the fact that
excess period spent by the petitioner while on ex-India leave is to be
deducted from earned leave only.
I have heard learned counsel for the parties and have gone
through the record with their able assistance.
Nothing has come on record that the order of recovery has been
passed by issuing appropriate notice to the petitioner. Once, an amount of
300 days leave encashment was paid to the petitioner after his retirement,
the same could not be recovered at the discretion of the respondents that too
unilaterally. As nothing has been placed on record that the rules of natural
justice was observed before passing the order of recovery of the excess
payment or before effecting recovery of the amount in question, the
recovery, being done from the petitioner cannot be sustained.
Even otherwise, in the year 2017 when the respondents passed
the impugned order Annexure P-3 on 07.07.2017, the petitioner is a retired
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employee. The recovery of the excess payment from a retired employee
cannot be done keeping in view the judgment of the Hon'ble Supreme Court
of India in Rafiq Masih's case (supra). The relevant paragraph of the said
judgment is as under:-
"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."
The Hon'ble Supreme Court of India in Civil Appeal No.7115
of 2010 titled as Thomas Daniel versus State of Kerala and others,
decided on 02.05.2022, has held that where an employee was not at fault
with regard to the extension of benefit and there is no misrepresentation on
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behalf of the employee concerned to get the emoluments beyond his/her
entitlement, the recovery cannot be made. The relevant paragraph of the
said judgment is as under:-
"(9) This Court in a catena of decisions has consistently
held that if the excess amount was not paid on account of any
misrepresentation or fraud of the employee or if such excess
payment was made by the employer by applying a wrong
principle for calculating the pay/allowance or on the basis of a
particular interpretation of rule/order which is subsequently
found to be erroneous, such excess payment of emoluments or
allowances are not recoverable. This relief against the
recovery is granted not because of any right of the employees
but in equity, exercising judicial discretion to provide relief to
the employees from the hardship that will be caused if the
recovery is ordered. This Court has further held that if in a
given case, it is proved that an employee had knowledge that
the payment received was in excess of what was due or
wrongly paid, or in cases where error is detected or corrected
within a short time of wrong payment, the matter being in the
realm of judicial discretion, the courts may on the facts and
circumstances of any particular case order for recovery of
amount paid in excess."
In the present case, there was no misrepresentation on part of
the petitioner when he was extended the benefit of leave encashment for a
period of 300 days. That being so, the case of the petitioner is covered in
his favour with regard to the recovery of the amount which is being ordered
from the petitioner.
Keeping in view the settled principle of law noticed
hereinbefore coupled with the facts of the present case, the prayer of the
petitioner is allowed. The impugned order dated 07.07.2017 (Annexure P-3)
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is set aside. In case, any recovery of the amount has been done from the
petitioner, the same be refunded back to him within a period of two months
from the receipt of copy of this order.
July 05, 2022 (HARSIMRAN SINGH SETHI)
harsha JUDGE
Whether speaking/reasoned : Yes
Whether reportable : Yes
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