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2015 DIGILAW 2506 (ALL)

SANJEEV DHAR DUBEY v. STATE OF U. P.

2015-08-20

MAHESH CHANDRA TRIPATHI

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JUDGMENT Hon’ble Mahesh Chandra Tripathi, J.—Heard learned counsel for the petitioner and learned Standing Counsel for the respondents. 2. By means of the present writ petition, the petitioner has prayed for quashing the impugned recovery order dated 26.11.2014 (Annexure 9) passed by respondent No. 4 for recovery of Rs. 27130/- from the salary of the petitioner and further directing the respondents not to deduct any amount from the salary of the petitioner. 3. In the present matter, the petitioner was appointed as Junior Assistant in the office of Superintending Engineer, Tubewell Circle Gorakhpur by the order dated 14.11.2005 on compassionate ground. Thereafter, the petitioner was promoted as Senior Assistant on 29.12.2012 and his salary was fixed according to Government Order salary fixation No. 2-1318/10-59M/2008 dated 8.12.2008. By the another letter dated 11.2.2014, the Finance Controller informed respondent No. 4 about the salary fixation of promoted Senior Assistant as Rs. 8560/- and grade salary will be Rs. 2800/-. The respondent No. 1 issued letter dated 9.9.2009 and directed the revised pay scale and salary fixation according to directive issued by Finance Committee. The petitioner is getting salary according to the Government Order dated 8.12.2008 No. salary-fixation-2-1318/10-59M/2008 issued by the Principal Secretary, Finance. On the 30.9.2014, the respondent No. 2 issued a letter to respondent No. 4 regarding test checking of wrong fixation of salary and recovery from twenty Government servants who had been paid extra salary. In pursuance to the test checking conducted by the respondent No. 2, a show-cause notice was issued to the petitioner by the respondent No. 4 on 15.10.2014. Thereafter the petitioner has submitted his reply to respondent No. 4 clarifying the details of salary fixation by the letter dated 10.11.2014. The respondent No. 4 vide order dated 26.11.2014 had issued recovery for Rs. 27,130/- from the petitioner. 4. Learned counsel for the petitioner submits that the order impugned cannot be sustained on the ground that the petitioner was not guilty of furnishing any incorrect information, which had led the concerned competent authority to commit the mistake of making the higher payment to the petitioner. The payment of higher salary to the petitioner was not on account of any misrepresentation made by him nor he had committed any fraud in the fixation and as such the petitioner was innocent in the matter. The payment of higher salary to the petitioner was not on account of any misrepresentation made by him nor he had committed any fraud in the fixation and as such the petitioner was innocent in the matter. He further makes submission that in the present matter no excess amount had been paid to the petitioner. The fixation was correct but in the garb of the impugned order the authority had proceeded to recover the excess amount. 5. On the other hand learned Standing Counsel has vehemently opposed the writ petition on the ground that at the moment when the infirmity and illegality had been noticed, the respondent authorities had immediately taken a note and direction was issued to recover the excess amount, which had been paid to the petitioner due to inadvertence. He had accepted to the extent that in the fixation of the higher salary the petitioner had no involvement or he had made any misrepresentation in the matter. However, he submits that in case of wrong fixation the department has every right to recover the said amount within reasonable time. 6. Hon’ble the Supreme Court in State of Punjab and others v. Rafiq Masih (Civil Appeal No. 11527 of 2014) on 18.12.2014 deciding the similarly controversy summarised 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.” 7. (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.” 7. In view of the above and considering the judgement in State of Punjab and others v. Rafiq Masih (Supra), the order impugned and the subsequent recovery cannot be sustained and are hereby quashed. 8. With the aforesaid observation and direction, the writ petition is allowed. The opposite parties are directed to release a sum of Rs. 27,130/- to the petitioner forthwith.