Rajasthan State Warehouse ... vs Chetan Swaroop Singh Kachhawaha ...
2023 Latest Caselaw 7045 Raj

[2023:RJ-JD:29145-DB]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 172/2020

1. Raj.state Ware House, Corporation (A Government Of Rajasthan Undertaking) Head Office Bhawani Singh Marg, Jaipur (Raj.) 302015 Through Its Chairman - Cum Managing Director.

2. Deputy Director (Administrative), Rajasthan State Warehousing Corporation, Head Office, Bhawani Singh Marg Jaipur (Raj.) 302015

3. Assistant Account Officer, Rajasthan State Warehousing Corporation, Head Office, Bhawani Singh Marg, Jaipur (Raj.) 302015.

----Appellants Versus

1. Tej Singh Rathore S/o Achal Signh Rathore, Aged About 75 Years, By Caste Rajput, Resident Of Gram Post Raisar, Tehsil Shergarh, District Jodhpur (Raj.)

2. Bansilal Mathur S/o Bakhtawar Lal Mathur, Aged About 77 Years, C-11, U.i.t. Quarter, Masuriya Colony, Jodhpur (Raj.)

3. Narendra Singh Choudhari S/o Kheta Ram Choudhari, Aged About 74 Years, 125-A, Laxmi Nagar, Paota B Road, Jodhpur (Raj.)

4. Mukut Bihari Mathur S/o Bansilal Mathur, Aged About 77 Years, 3 K 3, Chopasani Housing Board Jodhpur.

5. Dau Lal Mathur S/o Shri Megh Raj Mathur, Aged About 68 Years, By Caste Mathur, R/o B-32, Uit Colony, Pratap Nagar, Jodhpur

----Respondents Connected With D.B. Spl. Appl. Writ No. 185/2020

1. Rajasthan State Warehouse Corporation, (A Government Of Rajasthan Undertaking) Head Office Bhawani Singh Marg, Jaipur (Raj.). 302015 Through Its Chairman Cum Managing Director.

2. Assistant Director (Administration), Rajasthan State Warehousing Corporation, Head Office, Bhawani Singh Marga Jaipur (Raj.). 302015.

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3. Assistant Account Officer, Rajasthan State Warehousing Corporation, Head Office, Bhawani Singh Marg, Jaipur (Raj.) 302015.

----Appellants Versus Chetan Swaroop Singh Kachhawaha S/o Late Sh. Prithvi Singhji Kachhawha, Aged About 72 Years, By Caste Mali, Resident Of House No. 9, Amar Singh Marg, Outside Nagauri Gate, Jodhpur (Rajasthan).

----Respondent

For Appellant(s) : Mr. N.A. Rajpurohit.

Mr. Yogesh Sharma.

For Respondent(s) : Mr. Pritam Solanki.

HON'BLE THE CHIEF JUSTICE AUGUSTINE GEORGE MASIH HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

12/09/2023 (Oral)

1. D.B. Civil Special (W) No.185/2020 is barred by two days.

2. On the oral request made by learned counsel for the

appellants, the delay in filing the appeal is condoned.

3. Challenge in these appeals is to the order dated 17.12.2019

passed by the learned Single Judge in the writ petitions preferred

by the respondents, where aggrieved by the order of recovery

passed on 08.07.2011 after the respondents have retired for more

than nine years, the writ petitions were allowed by the learned

Single Judge by placing reliance upon the judgment passed by the

Co-ordinate Bench in S.B. Civil Writ Petition No.13739/2011 (Jai

Kumar Chaturvedi Vs. Rajasthan State Warehousing Corporation &

Anr.) decided on 25.07.2019 at Jaipur Bench. Reliance in that

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case was primarily upon the judgment of the Hon'ble Supreme

Court in the case of State of Punjab Vs. Rafiq Masih (White

Waster) etc. [2015 (4) SCC 334].

4. Learned counsel for the appellants has referred to the

judgment of the Hon'ble Supreme Court in the case of High Court

of Punjab & Haryana & Ors. Vs. Jagdev Singh [AIR 2016 SC

3523], wherein the Hon'ble the Supreme Court has explained the

proposition (ii) as laid down in para 10 of the judgment in Rafiq

Masif's case (supra). It was stated therein that the proposition (ii)

would not apply to the situation where the officer had given an

undertaking for refund of the amount if paid in excess while opting

for the revised pay-scale holding that the officer would be bound

by the said undertaking. He on this basis contends that since the

undertakings had been given by the respondents, the recovery

has to be effected from them and the protection as granted in

light of Rafiq Masih's case (supra) would not be applicable to the

case of the respondents.

5. We have gone through the judgment passed by the Hon'ble

Supreme Court in the case of Jagdev Singh (supra) wherein in

paras 10 & 11, it has been held as follows:

10. In State of Punjab and Ors etc. v. Rafiq Masih (White Washer) etc (AIR 2015 SC 696) this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer 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.

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(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."

(emphasis supplied).

11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking."

6. A bare perusal of the above would show that the clarification,

which has been issued by the Hon'ble Supreme Court in para 11

relates to proposition (ii) only, where recovery from the retired

employees or employees, who are due to retire within one year of

the order of recovery has been classified. The other clauses and

propositions have been kept intact and would, therefore, be

applicable to such employees who are protected by the other

propositions. The proposition (iii) relates to recovery of employees

when the excess payment has been made for a period in excess of

five years before the order of recovery is issued. Even assuming

that the proposition (ii) would not protect the case of the

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respondents, however, the respondents would get the benefit of

proposition (iii) as the recovery which is being effected from them

is before a period in excess of five years from the date of issuance

of the order of recovery.

7. In light of the above, the protection of judgment in the case

of Rafiq Masih (supra) would be very much available to the

respondents and thus, we do not find any merit in these appeals

and dismiss the same.

(VINIT KUMAR MATHUR),J (AUGUSTINE GEORGE MASIH),CJ

93-a.asopa/-

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