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Judgment
Petitioner, who is serving on the post of Junior
Engineer under the Public Works Department (B&R Branch), State
of Punjab, has filed the instant petition impugning the order dated
9.3.2015, Annexure P6, and in terms of which the annual
increments that had been granted to him, have been withdrawn.
Perusal of the impugned order would reveal that upon
withdrawal of the annual increments, pay of the petitioner has
been re-fixed at a lower stage and directions have been issued to
the concerned Divisional Accounts Officer to effect the necessary
recovery.
The writ petition had come up for preliminary hearing
on 21.4.2015 and while issuing notice of motion, recovery of the
amount already paid to the petitioner had been stayed.
Mr.VK Sharma, learned counsel representing the
petitioner, makes a statement during the course of hearing today
that he is confining the challenge to the impugned order dated
9.3.2015, Annexure P6, only as regards recovery. In other words,
the petitioner is not assailing the action of the respondent-
Authorities in having withdrawn the annual increments that had
been granted to him and the consequent re-fixation of pay at a
lower stage.
In support of the limited relief sought in the petition,
learned counsel would argue that the annual increments have
been granted to the petitioner by the respondent-Department of
their own accord and not on the basis of any false representation
having been made by the petitioner. It is argued that there was
no concealment of facts on his behalf. Precise submission raised
is that if no fraud and mis-representation is attributed to an
employee, recovery of financial benefits already granted would
not be permissible.
Per contra, learned State counsel would submit that
the basis of withdrawal of increments has been disclosed in the
impugned order itself i.e. the petitioner while serving as Junior
Engineer had not passed the departmental examination. It is
submitted that since the petitioner was not entitled to the
increments and since increments had been granted erroneously,
it was always open for the State to have rectified its mistake in
terms of withdrawal of increments. Further contended that the
impugned order dated 9.3.2015, Annexure P6, has been passed
after adhering to the principles of natural justice inasmuch as a
show cause notice dated 21.1.2015 vide memo No.3439,
Annexure P4, had been duly served upon the petitioner and it is
only thereafter the impugned order was passed.
Learned counsel for the parties have been heard.
Facts are not in dispute. Concededly, it was only upon
qualifying the departmental examination, the petitioner was
entitled to the financial benefits of annual increments. Petitioner
has not qualified the departmental examination. Be that as it
may, increments over a certain period of time were released in his
favour. The assertion on the part of the petitioner that the
release of increments was not on account of any mis-
representation or concealment of facts on his part has gone
unrebutted.
The short question that arises is that under such
admitted factual premise would recovery be permissible?
In the considered view of this Court, such limited issue
of recovery stands settled in favour of the petitioner in the light of
the observations made by the Hon''ble Supreme Court in State of
Punjab and others Vs. Rafiq Masih (White Washer) etc., 2015(1)
R.S.J., 177. The issue dealt with by the Apex Court was as
regards recovery from employees where payment had mistakenly
been made by the employer in excess of their entitlement and
had culled out certain situations where recovery at the hands of
the employer was held to be impermissible in law. Para 12 of the
judgment in Rafiq Masih''s case (supra) would be relevant and is
reproduced hereunder:-
"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,
summarize 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 recovery."
The petitioner, concededly, is holding a group ''C'' post.
The limited prayer raised on behalf of the petitioner that recovery
in the light of the impugned order, dated 9.3.2015, cannot be
effected, is covered by the eventualities/situations laid down in
Rafiq Masih''s case (supra).
For the reasons recorded above, the present petition is
partly allowed. The impugned order dated 9.3.2015, Annexure
P6, is upheld to the extent of withdrawal of increments and re-
fixation of the pay of the petitioner at a lower level. However, it is
held that recovery, pursuant to the impugned order dated
9.3.2015, cannot be effected. Ordered accordingly.
Petition disposed of.