Abdul Aleem vs The Deputy Director And 4 Others
2021 Latest Caselaw 1869 Tel

 HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI

                        W.P.No.14403 of 2021
ORDER:

The writ petition is filed seeking the following relief :

"..... to issue a writ, order or direction more in the nature of Mandamus declaring the order vide impugned Gratuity No.376/T1/Pen/DD.SA.Hyd/2020-21, dated 12.2.2021 issued by the 2nd respondent in so far as recovering an amount of Rs.5,32,583/ from the gratuity of the petitioner is concerned as being illegal, arbitrary, unjust and contrary to the para-meters passed by the Hon'ble Supreme Court in respect of recoveries from the employees of the Government in Civil Appeal No.11527 of 2014, dated 18.12.2014 and consequently set aside the same in so far as recovery from the gratuity of the petitioner is concerned and consequently hold that the petitioner is entitled for refund of withheld amount of Rs.5,32,583/- with all attendant benefits including restoration of pension based on the last pay drawn by the petitioner and interest on belated payments etc., and pass such other and further orders as this Hon'ble Court may deem fit and proper."

Heard Sri A. Tiruptahi Goud, learned counsel for the

petitioner, learned Government Pleader for Finance appearing

for respondents 1 and 2 and learned Government Pleader for

Home appearing for respondents 3 to 5.

It is the case of the petitioner that initially, he was

appointed as Constable with the respondents and later, he was

promoted as Head Constable. He retired from service on

31.03.2020 on attaining the age of superannuation. After his

retirement, the respondents have issued proceedings dated

11.02.2021 stating that he was erroneously paid excess amount

of Rs.5,32,583/- and that the same would be recovered from

his pensionary benefits. Challenging the same, the present

writ petition is filed.

Learned counsel appearing for the petitioner submits

that the issue raised in this writ petition is squarely covered by

the judgment rendered by the Hon'ble Supreme Court in Civil

Appeal No.11527 of 2014 dated 18.12.2014 i.e. STATE OF

PUNJAB v. RAFIQ MASIH wherein the Supreme Court had

framed certain guidelines where the amount paid to the

employees cannot be recovered. Therefore, appropriate orders

be passed in the writ petition directing the respondents to

refund the recovered amount from the gratuity of the

petitioner in terms of the law laid by the Supreme Court supra.

Learned Government Pleader appearing for the

respondents submits that the respondents, on noticing that

the petitioner was erroneously paid excess amount, have

passed the impugned order and no illegality or irregularity has

been committed by the respondents. Therefore, there are no

merits in the writ petition and it is liable to be dismissed.

This Court, having considered the rival submissions

made by both the parties, is of the view that the issue raised in

the writ petition is squarely covered by the judgment of the

Hon'ble Supreme Court in Civil Appeal No.11527 of 2014

dated 18.12.2014 i.e. STATE OF PUNJAB v. RAFIQ MASIH

wherein the Supreme Court has categorically held as under:

"6. 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."

Admittedly, as the case of petitioner falls under aforesaid

clauses (ii) and (iii) and as the respondents have paid the said

excess amount for more than five years, the writ petition is

allowed and the respondents are directed to refund the

amount of Rs.5,32,583/- recovered from the gratuity of the

petitioner within a period of four (4) weeks from the date of

receipt of a copy of this order. No costs.

Miscellaneous petitions pending, if any, shall stand

closed.

_____________________________________ JUSTICE ABHINAND KUMAR SHAVILI

Date: 29.06.2021

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