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Judgment
This writ petition is directed against the order dated 25/08/2017 (Annexure P/1) by the Collector, Jashpur by which an amount of Rs. 2,85,458/Â‐
has been directed to be recovered from petitioner's gratuity and leave encashment on the premises that from 01/04/2012 to 31/07/2016 he has been
paid the aforesaid excess amount which has been sought to be questioned by the petitioner on the ground that petitioner has been retired from service
on 31/08/2017 as well as it runs contrary to the decision rendered by the Supreme Court in the matter of State of Punjab v. Rafiq Masih (White
Washer) 2015 (4) SCC 334.
Mr. Manoj Kumar Sinha, learned counsel for the petitioner, would submit that petitioner was due to retire on 31/08/2017 and only a week prior to
that impugned order dated 25/07/2017 (Annexure P/1) has been passed directing recovery of Rs. 2,85,458/Â from petitioner's gratuity and leave
encashment as it is alleged to have been paid to the petitioner in excess from 01/04/2012 to 31/07/2016 on account of wrong pay fixation, which is
absolutely unsustainable and bad in law and it deserves to be quashed in light of the decision rendered by the Supreme Court in the matter of Rafiq
Masih (supra).
Mr. Hariom Rai, learned State counsel, would support the impugned order and submit that since excess amount has been paid to the petitioner, it
has rightly been directed to be recovered from his gratuity and leave encashment, as such, the impugned order is absolutely in accordance with law
and the instant writ petition deserves to be dismissed.
I have heard learned counsel for the parties, considered their rival submissions made herein above and went through the records with utmost
circumspection.
The question of recovery from a retired Government servant has been considered and authoritatively pronounced by their Lordships of the Supreme
Court in the matter of Rafiq Masih (supra). Paragraph 18 of the judgment states as under :Â
“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 hereinabove, we may, as a
ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law :
(i) Recovery from the employees belonging to Class III and Class IV service (of Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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.â€
Reverting to the facts of the case, it is quite vivid that the impugned order of recovery dated 25/08/2017 (Annexure P/1) is clearly covered by
Paragraph 18 of the judgment of the Supreme Court in Rafiq Masih (supra) and it is absolutely arbitrary and bad in law as the petitioner was due to
retire on 31/08/2017 and the order impugned has been passed just 7 days prior to the date of petitioner's retirement. Furthermore, the recovery of the
said amount could not have been directed to be made from petitioner's gratuity and leave encashment, that too, without affording an opportunity of
hearing to him. Accordingly, the impugned order dated 25/08/2017 (Annexure P/1) passed by the Collector, Jashpur is hereby quashed and the due
amount of gratuity and leave encashment, if not already paid, be paid to the petitioner within 30 days from the date of receipt of a copy of this order.
The instant writ petition is allowed to the extent indicated hereinÂabove. No cost(s).