Syed Ahmed Ali vs M.D,Mwssb,Hyd,And 2
2023 Latest Caselaw 3166 Tel

       THE HON'BLE SRI JUSTICE J.SREENIVAS RAO

             WRIT PETITION (TR) No.628 of 2017
ORDER:

This writ petition(TR) is filed seeking the following relief;

"to declare the action of the 3rd Respondent in issuing the impugned proceedings in Proceedings No.GM(E)/OandM Dn- XVll/E2/fixation/2012-13/3178 Dated 30.03.2013 is against the principles of natural justice and in violation of the Articles 14, 16 and 311(2) of Constitution of India and Consequently to set aside the said impugned proceedings directing the Respondents to take expeditious action within a reasonable time to fix the pay of the Applicant from 26.04.2011 i.e., the date of joining on his promotion to the category of Technical Grade-II(CB) duly releasing his future Annual Grade Increments."

2. The petitioner filed O.A.No.4346 of 2013 before the

A.P.A.T., Hyderabad, questioning the proceedings issued by

respondent No.3 vide No.GM(E)/OandM Dn-XVll/E2/

fixation/2012-13/3178, dated 30.03.2013, for recovery of an

amount of Rs.24,317/- from the salary on the plea of excess

payment, due to erroneous pay fixation. By virtue of abolition

of the A.P.A.T, the matter was transferred to this Court and

the same was renumbered as W.P.(TR) No.628 of 2017.

3. Heard Sri G.Narender Reddy, learned Standing Counsel

appearing on behalf of respondents.

4. When the matter was taken up for hearing on 12.10.2023,

none appeared for the petitioner. To give one opportunity, the

matter was posted to 13.10.2023, under the caption "for

dismissal". Today also there is no representation, in spite of the

matter being listed under the caption "for dismissal". However,

as the issue involved in this writ petition is squarely covered by

the judgment in State of Punjab & others vs. Rafiq Masih

(White Washer) 1, wherein, the Hon'ble Supreme Court has

postulated the following situations, where recoveries by

employer would be impermissible:

"18. 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

1 (2015) 4 SCC 334

(iii) Recovery from the 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."

5. In view of the principle laid down in the Rafiq Masih's

case (supra), the respondents are not entitled to recovery the

amount from the employee.

6. In view of the same, the impugned proceedings issued by

respondent No.3 is set aside.

7. Accordingly, the Writ Petition (TR) is allowed. No costs.

Pending miscellaneous applications, if any, shall stand

closed.

______________________ J. SREENIVAS RAO,J Date:13.10.2023 Smk