Bhawani Singh vs State and Others

Gopal Krishan Vyas, J.

Instant writ petition has been filed by the petitioner against the order of recovery of amount of Rs. 12,597/- which is said to be deposited by the petitioner under protest vide challan No. 54 dated 01.08.2000 (Annex. 7).

Learned counsel for the petitioner submits that for other employees, the respondents allowed the benefit of waiver for recoverable amount, therefore, the recovered amount which is said to be paid to the petitioner may ordered to be refunded.

Learned counsel for the petitioner invited attention of this Court towards judgment of Hon''ble Supreme Court in the case of State of Punjab and others etc. v. Rafiq Masih (White Waster) etc decided alongwith number of other appeals and submits that Hon''ble Supreme Court issued certain directions for the purpose of recovery of amount which is said to be paid to the employees mistakenly. While inviting attention towards above facts and judgment, learned counsel for the petitioner submits that respondents may kindly be directed to refund the amount of Rs. 12,579/- deposited by him under protest.

Learned counsel appearing on behalf of respondents vehemently opposed the prayer and submits that the amount which is wrongly paid to the petitioner can be recovered by the employer because there is no right created in favour of petitioner. It is also submitted that petitioner has already deposited the said amount, therefore, there is no question to refund the said amount.

After hearing learned counsel for the parties, I have perused the judgment passed in the case of Rafiq Masih (Supra) in CIVIL APPEAL No. 11527 OF 2014 (Arising out of SLP(C) No. 11684 of 2012) by the Hon''ble Supreme Court which reads as under:--

"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).

(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."

In present case also, for the purpose of granting retiral benefits, although petitioner has deposited the amount under protest but the said amount was paid to the petitioner due to mistake committed by the respondent department, therefore, petitioner cannot be held responsible for the amount paid to him. In view of judgment rendered by Hon''ble Supreme Court in the case of Rafiq Masih (Supra), the petitioner is entitled for refund of amount which is said to be deposited by him under protest.

In the opinion of this Court, after retirement, for the purpose of granting retiral benefits, every employee submits undertaking as required under the law but herein this case, the amount was paid to be petitioner due negligence of State for which petitioner cannot be held responsible, in view of judgment rendered in the case of Rafiq Masih (Supra), the petitioner is entitled to refund of the amount which is said to be deposited by him under protest.

Consequently, this writ petition is allowed and respondents are directed to refund the amount of Rs. 12,597/- to the petitioner within a period of one month from the date of receiving certified copy of this order.