Allahabad High Court
S.I.C.P.701217190 Chandra Shekhar ... vs State Of U.P. Thru. Addl. Chief Secy. ... on 27 February, 2023
Author: Vivek Chaudhary
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 5 Case :- WRIT - A No. - 8461 of 2022 Petitioner :- S.I.C.P.701217190 Chandra Shekhar Singh Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home (Police) Anubhag-6 Lko. And 3 Others Counsel for Petitioner :- Deepak Singh,Shashank Vikram Shah Counsel for Respondent :- C.S.C. Hon'ble Vivek Chaudhary,J.
Heard learned counsel for petitioner and learned Standing Counsel for the State.
Petitioner has approached this Court challenging the impugned order dated 13.04.2022 whereby pay of the petitioner has been re-fixed and recovery order dated 20.08.2022 of certain amount is passed against petitioner.
Learned counsel for petitioner submits that at no point of time, the petitioner who is working as Class-III employees as Accountants have been instrumental in fixation of his salary and the same was done by the respective departments in response to the Government Order from time to time and as such, the recovery cannot be effectuated from the petitioners.
While challenging the impugned orders, learned counsel for petitioners submits that the impugned orders are ex-parte orders passed without giving any opportunity of hearing to the petitioners. Since, neither any fraud is played by the petitioners nor they have given any undertaking for recovery of salary paid to them by the respondents, no recovery can be made from the petitioner. The law in this regard is well settled by Hon'ble Apex Court in the case of 'State of Punjab and others Vs. Rafiq Masih (White Washer) and others, 2015 (4) SCC 334', paragraph-18 of which provides:-
"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 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."
Learned counsel for petitioner submits that case of petitioners does not fall within the exception of the said judgment and, hence, being covered by the Rafiq Masih case (supra), the impugned orders are liable to be set aside.
Learned Additional Chief Standing Counsel has opposed the petition on merit but could not dispute the aforesaid submission of learned counsel for the petitioners and that the impugned orders are passed without giving any opportunity of hearing to petitioners, however, he tried to justify the impugned action.
Having heard learned counsel for the parties and having perused the material available on record, I am of the opinion that in view of the dictum of the Hon'ble Apex Court in re; Rafiq Masih (supra) as well as fact that the impugned order is passed without giving any opportunity of hearing to petitioner, the impugned order dated 13.04.2022 with regard to re-fixation of salary of petitioner and recovery orders dated 20.08.2022 is patently illegal, arbitrary and uncalled for, therefore, the same are hereby set aside/quashed.
In case, respondents believe that case of petitioner falls within the exception of Rafiq Masih case (supra) or that his salary was wrongly paid in excess and need for refixation for future payment is required, they may pass fresh order only after giving a notice and proper opportunity of hearing to petitioner.
Such a notice may be given by respondents, if so required, to the petitioner within a period of six weeks from the date of production of certified copy of this order and the entire process shall also be completed within a further period of two months from the date of issuance of notice. In case such a notice is not issued to petitioners within six weeks, respondents shall also pay the amount already deducted from the petitioner under the impugned orders.
With the aforesaid, present writ petition is allowed.
[Vivek Chaudhary J.] Order Date :- 27.2.2023
-Amit K-