Haroon Khan vs Union Of India And Others

Om Prakash-VII, Member (J)

Learned counsel appearing for the parties state that pleadings are complete in the matter and they are ready to argue the case. The same may be decided at this stage itself.

Considering their willingness, heard learned counsel appearing for the parties at length.

This O.A. has been filed by the learned counsel for the applicant for the following reliefs:-

i) To quash the impugned order dated 19.11.2019 and its recovery (Annexure No.A-1).

ii) To refund the recovered amount to the applicant along with 12% interest as deem fit in the facts and circumstances of the case, and to restore the original pay of the applicant for due date.

iii) To award the cost and compensation of the petition.

The facts emerges from the O.A. are that the applicant was found medically unfit for the post of Goods Guard by the Medical Board held on 21.7.2015. Department could not trace out any alternative post for the applicant upto 12.7.2016, he was working on supernumerary post and getting pay and other benefits. Vide order dated 5.7.2016, Divisional Personnel Officer directed to post the applicant on alternative post as Canteen Manager under DRM (P) Jhansi. Applicant was relieved on 12.7.2016 and joined on 13.7.2016. Divisional Personnel Officer, Jhansi passed the impugned order of recovery dated 19.11.2019 without deciding the representation of the applicant. Impugned order contains that “after medical decategorisaiton and posting for alternative job, your pay has been wrongly fixed. Therefore, the same has been refixed and excess amount of Rs. 4,16,214 paid to you will be recovered in 24 installments.”

In the counter affidavit, learned counsel for respondents stated that applicant was declared medically unfit for the post of Goods Guard on 21.7.2015 and as per para 1303 of IREM, he was kept on special supernumerary post in the pay bank Rs. 9300-34800 + G.P. Rs. 4200/- and after screening he was posted as Canteen Manager, Jhansi in G.P. Rs. 4200/-. Applicant has joined the post on 13.7.2016. It is further stated that applicant’s pay was wrongly fixed at the time of being medically declared unfit on 21.7.2015. The applicant was given running benefits in the supernumerary period as well as employee’s pay after joining the alternative post was fixed in addition of 30% pay element of running allowance. The same has been rectified and correct pay fixation has been done.

Heard the learned counsel for the parties.

Submission of learned counsel appearing for applicant is that recovery order made in the matter is illegal. No notice was either issued or served upon the applicant. If the facts disclosed in the impugned order is taken into consideration, then also no misrepresentation was made on part of the applicant. Fixation was made by the officials. If recovery is required, the same may be made from the official concerned who has fixed the salary of the applicant. Since there is no fault or misrepresentation on part of the applicant, this O.A. is squarely covered with the judgement passed by the Hon’ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih and others reported in (2015) 2 Supreme Court Cases (L&S) 33.

Learned counsel for the respondents argued that due to wrong fixation of the salary excess payment had been made to the applicant. Due to this reason recovery process was started and some amount has been recovered. Although the applicant is a Group ’C’ employee, the recovery order is in accordance with law.

I have considered the rival submissions of learned counsel appearing for the parties and gone through the entire record.

In this matter, as is evident from the record, recovery process was started vide Annexure No.1. Thereby, a total amount of Rs. 4,16,214/- was ordered to be recovered in twenty four equal installments. If the facts disclosed in the order dated 19.11.2019 (Annexure no.1) are taken into consideration in light of the submissions raised across the bar, nothing is mentioned in it to reveal as to whether notice was issued before passing order for recovery or any show cause notice was served upon the applicant. Opportunity of hearing has also not been given to the applicant before effecting the recovery.

There is nothing on record to show that any misrepresentation or fraud has been committed on part of the applicant. If such is the position, order dated 19.11.2019 passed by the authority concerned/ respondents is not in accordance with law, particularly when the applicant is a Group ‘C’ employee.

In the case of State of Punjab and others Vs. Rafiq Masih and others (supra), Hon’ble Supreme Court has been pleased to observe as under:-

”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.

Considering the facts and circumstances of the case and in the light of the observations made by the Hon’ble Apex Court, the present O.A. is disposed off with following directions:-

i) As far as reducing the pay of the applicant is concerned, impugned order dated 19.11.2019 is quashed. Matter is remitted back to the respondents to refix the salary of the applicant, if any wrong has been done by them in fixing the salary of the applicant, after issuing show cause notice to the applicant and considering the reply given by him. If respondents found that refixation is necessary, then refix the salary of the applicant within a period of 03 months.

ii) Amount if any recovered from the applicant shall be refunded to him within a period of 03 months. If any amount is still to be recovered, same shall not be recovered.

iii) No order as to costs.