Uttarakhand High Court
Jeewan Chandra Joshi vs State Of Uttarakhand And Others on 15 February, 2018
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 2604 of 2015 (M/S)
Jeewan Chandra Joshi ....Petitioner
Versus
State & others
....Respondents
Mr. Dushyant Mainali, Advocate for the petitioner.
Mr. Lalit Sharma, Standing Counsel for the Union of India/respondent no.2.
Mr. P.C. Bisht, Standing Counsel for the State.
Judgment Reserved- 12.02.2018
Date of Judgment - 15.02.2018
Hon'ble Rajiv Sharma, J.
Petitioner's father was posted as Head Clerk in Animal Husbandry Department, Nainital. He was superannuated on 30.06.1995. He died on 13.10.2011. Petitioner is aggrieved by the issuance of recovery certificate amounting to Rs.1,07,387.00/-.
2. According to the reply filed by the respondent no.3, the Accountant General (Lekha and Hakdari IInd), Allahabad, U.P. through its letter dated 01.02.2006, directed the Deputy Director, Animal Husbandry Department, Nainintal regarding the recovery of Rs.17,906.00/- from Late Madhwa Nand Joshi, which was paid to him in excess.
3. Respondents have issued letters dated 11.05.2006, 02.04.2007 and 10.06.2009 to the petitioner's father to deposit the excess amount along with interest.
4. The matter was referred to the District Magistrate, Nainital for recovery of arrears.
5. Petitioner's father has retired on 30.06.1995. He died on 13.10.2011. The alleged recovery pertains to the excess payment made to the petitioner's father in the year 1987. There is no material placed on record that the father of the petitioner was ever issued any notice for the alleged excess payment made to him in the year 1987.
26. It is not borne out from the record that petitioner's father has ever misrepresented or concealed any fact at the time of alleged excessive payment to him.
7. The respondents cannot become judge of their own cause. The notice was required to be issued to the petitioner's father as well as to the petitioner why the alleged amount be not recovered from them due to excess payment. There is violation of principle of natural justice.
8. Their Lordships of the Hon'ble Supreme Court in (2015) 4 SCC 334 in the case of "State of Punjab and others Vs. Rafiq Masih (White Washer)" etc. & other analogous appeals have held as under:-
"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 decision referred to herein above, we may, as a ready reference, summarize 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 the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the employees, when the excess payment has been made for a period of excess of five years, before the order of recovery is issued.
(iv) Recovery in case 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 cases, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous of harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
9. Petitioner's father belonged to the lowest strata of the society.
310. Accordingly, the writ petition is allowed. Impugned recovery citation dated 31.07.2015 for the sum of Rs.1,07,387.00/- is quashed and set-aside.
11. Pending application, if any, stands disposed of accordingly.
(Rajiv Sharma, J.) NISHANT