Gujarat High Court
Babulal Bhimjibhai Radadiya & 4 vs Gujarat State Seeds Corporation Ltd on 17 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/10652/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10652 of 2015
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BABULAL BHIMJIBHAI RADADIYA & 4....Petitioner(s)
Versus
GUJARAT STATE SEEDS CORPORATION LTD.....Respondent(s)
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Appearance:
MR SAMIR B GOHIL, ADVOCATE for the Petitioner(s) No. 1 - 5
MR AR THACKER, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 17/03/2016
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the petitioners, retired employees of the respondent-Corporation, have prayed for the following reliefs;
"A). Quashing and setting the orders dt. 22.7.2013 (Annexure C) and further directing the respondent to refund the amount of recovery with 12% simple interest from the date of recovery.
E). During the pendency and final disposal of this petition, the Ad interim relief in terms of paragraph 12-A may be granted.
F). To grant such and further relief as may be deemed fit and proper.
2 The facts of this case may be summarized as under;
2.1. The petitioners were appointed as the Technical Assistant Junior Class-III employee under the respondent-Corporation.
Page 1 of 17HC-NIC Page 1 of 17 Created On Sun Mar 20 02:21:14 IST 2016 C/SCA/10652/2015 ORDER The details of the petitioners are as under;
No. Name of Date of Date of Year 1st Year 2nd Amount of
petitioners appointment retirement higher higher recovery
employees pay scale pay
scale
1 B.B.Radadiya 01/04/78 30.6.2014 01/04/87 1998 Rs.1,61,580
2 S.S. Bhuva 07/08/78 31.1.14 07/08/87 1998 Rs.1,60,966
3 A.L. Patel 21.8.1978 30.6.2013 21.8.1987 1998 Rs.1,63,793
4 R.H. Patel 10/11/78 30.6.2014 10/11/87 1998 Rs.81,613
5 P.M. Vaghani 06/11/78 31.8.2013 06/11/87 1998 Rs.85,135
2.2 It appears that the petitioners were granted the first
higher pay scale according to the Government Resolution dated 16th August, 1994, which provides that the employees are entitled for the higher pay scale on completion of nine years of service in the same cadre. The first higher pay scale was granted in the year 1987. They were grated the second higher pay scale in the year 1998. By resolution dated 2nd July, 2007, the policy of the higher pay scale was amended. Clause- 2(4)(B) of the said resolution provides that the employees, who were granted the first higher pay scale after nine years of service would be entitled for the second higher pay scale on completion of fifteen years of service from the date of the first higher pay scale.
2.3 It appears that on a very erroneous interpretation of the resolution referred to above, the Corporation cancelled the second higher pay scale of the petitioners. The Corporation also effected the recovery of the requisite amount from the retiral benefits. The details of the same are provided in the chart referred to above. Hence, this petition.
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3. The learned counsel appearing for the petitioners submitted that the action on the part of the Corporation is illegal and contrary to the decision of the Supreme Court in the case of State of Punjab & Ors. vs. Rafiq Masih, 2015(4) SCC 334. He also relied on Rule 28 of the Gujarat Civil Services (Pay) Rules, 2002, which provides that no recovery can be made if there is no fraud or misrepresentation made by an employee. He invited my attention to the decision of the learned Single Judge of this Court dated 7.1.2013 passed in Special Civil Application No.2128 of 2012, wherein the following was observed;
"1. By way of this petition, State has challenged the order passed by the Gujarat Primary Education Tribunal dated 7.10.2010, in Application No: 27 of 2010, whereby recovery ordered by the authorities from the respondent herein was set aside. The respondent had approached the Education Tribunal challenging the decision of the authorities in her pay-fixation which was adverse to her. Ultimately, the employee gave up her claim on merits and the application was restricted only to the extent of recovery, which the Tribunal accepted and set aside the recovery. It is that order of the Tribunal which is challenged by the state in this petition.
2. Heard Mr.Oza, learned Assistant Government Pleader for the petitioner authorities. Learned counsel for the petitioner pointed out that undertaking given by the petitioner was to the effect that the amount which is payable by the respondent employee can be adjusted from her retiral dues. It is indicated that authorities of the Government were entitled to the said amount of Rs.1,34,311/- and the same was adjusted from retiral dues of respondent employee.
3. On the other hand, it is indicated by learned counsel for respondent employee that in view of provisions of BCSR 57A and Rule 28 of the Gujarat Civil Services (Pay) Rules, 2002, even if the employee was in service, recovery could not have been ordered. Learned AGP is not in a position to dispute this Rules position. It is not even the Page 3 of 17 HC-NIC Page 3 of 17 Created On Sun Mar 20 02:21:14 IST 2016 C/SCA/10652/2015 ORDER case of the Government that there was any fraud or misrepresentation by the respondent employee.
4. In this factual background, I find that no recovery could have been permitted from the respondent employee. The Tribunal has also passed order on this line. I see no reason to interfere in the view taken by the Tribunal. The petition does not have any force and the same needs to be dismissed.
5. It is indicated that amount recovered from respondent No:1, was ordered to be deposited in registry of this court, which in turn was ordered to be invested in fixed deposit. That amount be paid to respondent no:1 employee now, with interest accrued thereon. Registry to do needful in that regard.
6. Subject to above, petition is dismissed. Rule is discharged. No costs."
4. On the other hand, this writ application has been vehemently opposed by Mr. Thaker, the learned counsel appearing for the Corporation. Probably, the only argument canvassed is the delay in approaching this Court. To put it in other words, according to Mr. Thaker, when the recovery was effected, they should have come before this Court, but they chose to file this writ application after the retirement.
5 He has filed an affidavit-in-reply, inter alia, stating as under;
"3. I say that the present joint petition filed by the petitioners is not maintainable. I say that separate petition with facts supported by affidavit is required to be filed for all the petitioners. Moreover the order of the recovery is already implemented before 2 years at that time none of the petitioners have raised any objection and now it is not open for the petitioners to challenge the same after long period of more than two years. I say that therefore the petition is not maintainable and is required to be rejected. I say that once the recovery is already made effective before more than two years, therefore, Page 4 of 17 HC-NIC Page 4 of 17 Created On Sun Mar 20 02:21:14 IST 2016 C/SCA/10652/2015 ORDER the present petition is not maintainable and required to be rejected.
4. I say that petitioners have stated on oath in para 10 of the petition that "The petitioners have no other alternative efficacious remedy open to them." In this regard it is respectfully submitted that petitioners are well aware that against the order passed by the Managing Director (M.D) appeal is provided before the Board of the Corporation, therefore, the petition filed by the petitioners is not maintainable in view of the alternative remedy available to the petitioners to challenged the order passed by MD before the Board by way of appeal. Therefore, the present petition is not maintainable.
5. I say that petitioners have retired in 2013-2014 and they have filed this petition after a period of more than one and half year of their retirement and therefore petition filed by the petitioners is required to be rejected.
6. I say that in Para-2 of the petition, petitioners have stated that "the petitioners were appointed as Technical Assistant/Junior Clerk Class-III employees under the respondent Corporation and they have retired from the services as Class-III employees and the petitioners have given details of the petitioners." In this regard it is respectfully submitted that the petitioners have not retired as Class-III employees but they have retired as Class -II employees. I say that after granted the high pay scale in the year 1987 all the petitioners became Class II employees of the Corporation, thus they have made incorrect statement on oath and therefore, on that ground also the petition deserves to be rejected. More over petitioner nos. 1, 2 & 4 got promotion as well as higher pay-scale in the year 1987 and 1998 that fact also suppressed by the petitioner no. 1 who has filed affidavit in support of the petition. I say that there are incorrect statement has been made on oath by the petitioner no. 1 in the present petition. I say those amounts which are recover from the petitioners not from the amount of Gratuity as alleged in the petition.
7. I say that each of the petitioners was given higher Page 5 of 17 HC-NIC Page 5 of 17 Created On Sun Mar 20 02:21:14 IST 2016 C/SCA/10652/2015 ORDER pay scale as per the Government Resolution 5 th July, 1991 after completion of 9 years of service in their cadre in the year 1987. I say that as per the resolution of the Govt. of Gujarat dated 16.8.1994, it will be applicable to the employees who are not having chances of getting promotion, then only the said resolution is applicable. In the present case, the petitioner no. 1, 2 and 4 have retired on promoted posts (Senior Seed Officer). I say that higher pay scale was granted in the year 1987 on the basis of the Gov. Resolution dated 5th July, 1991 and higher pay scale granted in the year 1997 & 1998 on the basis of Govt. Resolution dated 16.8.1994. I say that when higher pay scale was granted in the year 1997 & 1998 at time each petitioner have submitted the undertaking to the Corporation. I say that as per the undertaking petitioners are bound to refund the excess payment made to them and Corporation is entitle to recover from the petitioner. I say that recovery already made. I say therefore, now it not opens for the petitioners to filed present petition challenging the said order of recovery dated 22.7.2013, after more than two years, which already implemented before two years.
8. I say that Rule 28 of Gujarat Civil Service (Pay) Rules 2002 not applicable in the present case. I say that said rule will apply "Pay when promotion or appointment is found to be erroneous."
9. I say that excess payment made is from the public money which is "taxpayer's money" which belongs neither to the officers who have effected overpayment nor to the recipients. I say that amount paid/received without authority of law can always be recovered; therefore, the recovery order is legal and proper."
6. In rejoinder, the petitioners have clarified that they did not retire as the Class-III employees, but they retired as the Class-II employees. They have further clarified that they were granted the higher pay scale in the year 1987 as they became the Class-III employees of the Corporation.
7. I fail to understand what prompted the Corporation to Page 6 of 17 HC-NIC Page 6 of 17 Created On Sun Mar 20 02:21:14 IST 2016 C/SCA/10652/2015 ORDER apply the resolution of 2.7.2007 referred to above when the second higher pay scale was granted in the year 1998 according to the Government Resolution of 1994. There is no explanation in this regard. Let me assume for the moment that the same was granted by mistake. It is not the case of the Corporation that there was any fraud played upon by the petitioners or any misrepresentation which led the Corporation to sanction the second higher pay scale.
8. The issue in hand is now squarely covered by the decision of the Supreme Court referred to above in the case of State of Punjab & Ors. vs. Rafiq Masih. I may quote the observations of the Supreme Court as under;
"9. The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality, can be found in Articles 14 to 18, contained in Part III of the Constitution of India, dealing with "Fundamental Rights". These Articles of the Constitution, besides assuring equality before the law and equal protection of the laws, also disallow, discrimination with the object of achieving equality, in matters of employment; abolish untouchability, to upgrade the social status of an ostracized section of the society; and extinguish titles, to scale down the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the "Directive Principles of State Policy". These Articles of the Constitution of India contain a mandate to the State requiring it to assure a social order providing justice - social, economic and political, by inter alia minimizing monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting Page 7 of 17 HC-NIC Page 7 of 17 Created On Sun Mar 20 02:21:14 IST 2016 C/SCA/10652/2015 ORDER economic interests of the weaker sections.
10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.
11. For the above determination, we shall refer to some precedents of this Court wherein the question of recovery of the excess amount paid to employees, came up for consideration, and this Court disallowed the same. These are situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters.
12. Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475, wherein this Court recorded the following observation in paragraph 58:
"58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the Page 8 of 17 HC-NIC Page 8 of 17 Created On Sun Mar 20 02:21:14 IST 2016 C/SCA/10652/2015 ORDER employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India, (1994) 2 SCC 521, Union of India v. M. Bhaskar, (1996) 4 SCC 416, V. Ganga Ram v. Director, (1997) 6 SCC 139, Col. B.J. Akkara (Retd.) v. Govt. of India, (2006) 11 SCC 709, Purshottam Lal Das v. State of Bihar, (2006) 11 SCC 492, Punjab National Bank v. Manjeet Singh, (2006) 8 SCC 647 and Bihar SEB v. Bijay Bahadur, (2000) 10 SCC 99."
(emphasis is ours)
13. First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir's case (supra) recognized, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his Page 9 of 17 HC-NIC Page 9 of 17 Created On Sun Mar 20 02:21:14 IST 2016 C/SCA/10652/2015 ORDER wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee.
14. In this context, reference may also be made to the decision rendered by this Court in Shyam Babu Verma v. Union of India (1994) 2 SCC 521, wherein this Court observed as under:
"11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330- 560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same."(emphasis is ours) It is apparent, that in Shyam Babu Verma's case (supra), the higher pay scale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984, i.e., after a period of 11 years. In Page 10 of 17 HC-NIC Page 10 of 17 Created On Sun Mar 20 02:21:14 IST 2016 C/SCA/10652/2015 ORDER the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the pay-scale would not be just and proper. We therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India.
15. Examining a similar proposition, this Court in Col. B.J. Akkara v. Government of India, (2006) 11 SCC 709, observed as under:
"28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery." (emphasis is ours) A perusal of the aforesaid observations made by this Court in Col. B.J. Akkara's case (supra) reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted Page 11 of 17 HC-NIC Page 11 of 17 Created On Sun Mar 20 02:21:14 IST 2016 C/SCA/10652/2015 ORDER above, this Court also recorded, that recovery from employees in lower rung of service, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are therefore satisfied in concluding, that such recovery from employees belonging to the lower rungs (i.e., Class-III and Class-IV - sometimes denoted as Group 'C' and Group 'D') of service, should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India.
16. This Court in Syed Abdul Qadir v. State of Bihar (supra) held as follows:
"59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar Page 12 of 17 HC-NIC Page 12 of 17 Created On Sun Mar 20 02:21:14 IST 2016 C/SCA/10652/2015 ORDER facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." (emphasis is ours) Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case (supra), that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation.
17. Last of all, reference may be made to the decision in Sahib Ram Verma v. Union of India, (1995) Supp. 1 SCC 18, wherein it was concluded as Page 13 of 17 HC-NIC Page 13 of 17 Created On Sun Mar 20 02:21:14 IST 2016 C/SCA/10652/2015 ORDER under:
"4. Mr. Prem Malhotra, learned counsel for the appellant, contended that the previous scale of Rs 220-550 to which the appellant was entitled became Rs 700-1600 since the appellant had been granted that scale of pay in relaxation of the educational qualification. The High Court was, therefore, not right in dismissing the writ petition. We do not find any force in this contention. It is seen that the Government in consultation with the University Grants Commission had revised the pay scale of a Librarian working in the colleges to Rs 700-1600 but they insisted upon the minimum educational qualification of first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib. Science or a Diploma in Library Science. The relaxation given was only as regards obtaining first or second class in the prescribed educational qualification but not relaxation in the educational qualification itself.
5 . Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs." (emphasis is ours) It would be pertinent to mention, that Librarians were equated with Lecturers, for the grant of the pay scale of Rs.700-1600. The above pay parity would extend Page 14 of 17 HC-NIC Page 14 of 17 Created On Sun Mar 20 02:21:14 IST 2016 C/SCA/10652/2015 ORDER to Librarians, subject to the condition that they possessed the prescribed minimum educational qualification (first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib. Science or a Diploma in Library Science, the degree of M.Lib. Science being a preferential qualification). For those Librarians appointed prior to 3.12.1972, the educational qualifications were relaxed. In Sahib Ram Verma's case (supra), a mistake was committed by wrongly extending to the appellants the revised pay scale, by relaxing the prescribed educational qualifications, even though the concerned appellants were ineligible for the same. The concerned appellants were held not eligible for the higher scale, by applying the principle of "equal pay for equal work". This Court, in the above circumstances, did not allow the recovery of the excess payment. This was apparently done because this Court felt that the employees were entitled to wages, for the post against which they had discharged their duties. In the above view of the matter, we are of the opinion, that it would be iniquitous and arbitrary for an employer to require an employee to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an inferior post.
12. 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).Page 15 of 17
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(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.
13. We are informed by the learned counsel representing the appellant- State of Punjab, that all the cases in this bunch of appeals, would undisputedly fall within the first four categories delineated hereinabove. In the appeals referred to above, therefore, the impugned orders passed by the High Court of Punjab and Haryana (quashing the order of recovery), shall be deemed to have been upheld, for the reasons recorded above.
14. The appeals are disposed of in the above terms."
9. For the foregoing reasons, this petition succeeds and is hereby allowed. The recovery orders dated 22nd July, 2013 which are at Annexure-C collectively, are ordered to be quashed. The Corporation is directed to refund the amount recovered from each of the petitioners from their retiral benefits within a period of two months from today with 12% interest.
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10. With the above, this application is disposed of. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 17 of 17 HC-NIC Page 17 of 17 Created On Sun Mar 20 02:21:14 IST 2016