Punjab-Haryana High Court
Ravi Dutt Sharma vs State Of Haryana & Ors on 22 July, 2022
CWP-25085-2016 :1:
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
213 CWP-25085-2016
Date of decision : 22.07.2022
RAVI DUTT SHARMA
...... Petitioner
VERSUS
STATE OF HARYANA & ORS
...... Respondents
CORAM : HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
***
Present :- Mr. Jangjit Singh Dahiya, Advocate
for the petitioner.
Mr. Kiran Pal Singh, AAG, Haryana.
***
HARSIMRAN SINGH SETHI, J. (Oral)
Learned counsel for the petitioner argues that though in the
present petition, the petitioner is also challenging the refixation of his salary
but, the petitioner is only pressing his prayer with respect of the recovery of
Rs.81159/-, which is being sought to be done from the petitioner upon
refixing his salary. Learned counsel further submits that in the year 1996,
while giving the promotion to the petitioner from the post of Ziledaar to that
of Deputy Collector, he was given one increment. The said increment was
drawn by the petitioner till his date of retirement on 31.05.2013 but, after the
said date, the pay of the petitioner was refixed on the ground that the said
increment granted to the petitioner in 1996, was wrongly granted. Learned
counsel for the petitioner argues that the claim of the petitioner in respect of
the recovery of the excess amount is covered by the judgment of Hon'ble
1 of 5
CWP-25085-2016 :2:
Supreme Court of India in Civil Appeal No.11527 of 2014 State of Punjab
and others etc. Vs. Rafiq Masih (White Washer) etc. [2015(2) SCC
(Civil) 608] according to which, if an employee kept on receiving benefit for
a period of five years, before the same was withdrawn, no recovery of the
excess amount paid can be done.
After notice of motion, the respondents have filed the reply. The
respondents submit therein that as the petitioner was already drawing a
higher pay scale than that of the post of Ziledaar at the time of promotion
and that on promotion, the petitioner was not entitled for the grant of an
increment which was inadvertently extended to him. Learned counsel
submits that as and when the said discrepancy was noticed, the benefit was
withdrawn and pay of the petitioner was refixed and it was noticed that the
petitioner was paid a sum of Rs.81159/- beyond his entitlement and as the
said excess amount paid to the petitioner is a public money, the same was
rightly ordered to be recovered.
I have heard learned counsel for the parties and have gone
through the record with their able assistance.
The only question is whether in the facts and circumstances of
present case, the recovery of excess payment can be done from the petitioner
or not. It is a conceded fact that the pay of the petitioner was fixed by the
respondents themselves after granting him promotion to the post of Deputy
Collector in the year 1996. There was no misrepresentation or fraud made by
the petitioner seeking the grant of one increment, which was granted to him,
and then withdrawn by the respondents which led to the payment of excess
amount, which amount is now sought to be recovered.
As per the settled principle of law settled by Hon'ble Supreme
2 of 5
CWP-25085-2016 :3:
Court of India in State of Punjab and others etc. Vs. Rafiq Masih (supra),
once an employee continue to get benefit for a period of five years before
the same was withdrawn, no recovery can be done. A part from this, an
employee who has retired or who is to retire within a period of one year, no
recovery of the excess amount can be done. The relevant paragraph 12 of the
judgment is as under:
"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."
In the present case, the petitioner continue to get the increment
for a period of more than five years at the time when the same was
withdrawn and had retired by the time recovery of the excess amount was
sought to be effected, hence, the recovery of the excess amount paid to the
petitioner is not permissible.
3 of 5
CWP-25085-2016 :4:
Apart from Rafiq Masih (supra) even the judgment of the
Hon'ble Supreme Court of India rendered in Civil Appeal No.7115 of 2010
titled Thomas Daniel Vs. State of Kerala and others can be relied in the
facts and circumstances of this case. As per the law laid down in Thomas
Daniel (supra), if there is no fraud played by the employee concerned or
where there was no misrepresentation by the employee so as to get the
benefit which is being withdrawn, no recovery of the excess amount can be
done after withdrawing of the benefit. As there is no misrepresentation being
alleged against the petitioner, the recovery is impermissible. Relevant part of
Thomas Daniel (supra) 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."
Keeping in view the above, the recovery being done from the
petitioner amounting to Rs.81159/- is held to be bad and is accordingly
4 of 5
CWP-25085-2016 :5:
quashed. In case the said amount has been recovered from the petitioner, the
same be refunded back to the petitioner within a period of two months from
the date of receipt of the certified copy of this order.
The petition stands allowed in above terms.
(HARSIMRAN SINGH SETHI)
JUDGE
22.07.2022
rimpal
Whether speaking/reasoned Yes
Whether Reportable : No
5 of 5
