Surendra Mandal vs State Of Bihar

In the instant appeal, appellants have assailed the order of the learned Single Judge dated 16.04.2021 passed in C.W.J.C. No. 6910 of 2020.

Short question for consideration is whether L.P.A. Bench could interfere with the order of the learned Single Judge to the following effect:

“the benefit of second A.C.P. granted to the petitioners may be recovered by the respondents in easy installments.”

Learned counsel for the appellants submitted that the appellants are not on merits insofar as entitlement of first and second A.C.P. is concerned. They are concerned only in respect of recovery of certain amount pursuant to grant to second A.C.P. It is submitted that Apex Court in the case of State of Panjab and Others vs. Rafiq Masih (White Washer) and Others reported in 2015 (1) PLJR (SC) 261 in paragraph No. 12, it is held that recovery is impermissible. He has also relied on Apex Court’s decision in the case of Thomas Denial vs. State of Kerala and Others, 2022 Live Law (SC) 438 decided on 02.05.2022.

Per contra, learned counsel for the respondents resisted the aforesaid contentions and submitted that illegal monetary benefit which have been extended to the appellants, therefore rightly the learned Single Judge has ordered for recovery. He has also cited Apex Court decisions namely High Court of Punjab and Haryana vs. Jagdev Singh reported in (2016) 4 PLJR (SC) 78 and Syed Abdul Qadir and others vs. State of Bihar and others reported in (2009) 3 SCC 475.

Question for consideration is whether recovery could be ordered by the learned Single Judge in respect of illegally granted second A.C.P. to the appellants or not? Extract of the order of learned Single Judge reads as under:

“In the result, these writ applications are partly allowed to the extent that so far as benefit of first ACP is concerned, benefit of first ACP should be reduced but there shall not be any recovery of amount paid to the petitioners. The benefit of second ACP granted to the petitioners may be recovered by the respondents in easy installments and the respondents are directed to fix entitlement of the petitioners in the first ACP and second ACP as constable and not literate constable in the pay scale of Havildar and ASI from the respective date of their entitlements. Corrective measures may be taken by the respondents at the earliest preferably within a period of three months from the date of receipt /production of a copy of this judgment.

With the aforesaid, all these writ applications are partly allowed and disposed of in the manner indicated above.”

Underline Supplied

The appellants’ contention is that illegal benefit extended to the appellants cannot be ordered to be recovered in the light of the Apex Court’s decisions in State of Panjab and Others vs. Rafiq Masih (White Washer) and Others reported in 2015 (1) PLJR (SC) 261 and Thomas Denial vs. State of Kerala and Others, 2022 Live Law (SC) 438. Paragraph No. 12 of the State of Panjab and Others vs. Rafiq Masih (White Washer) and Others reported in 2015 (1) PLJR (SC) 261 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 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.”

Even, the latest decision in the case of Thomas Denial vs. State of Kerala and Others, 2022 Live Law (SC) 438, Apex Court has held that recovery cannot be ordered. Learned counsel for the respondents cited decisions namely High Court of Punjab and Haryana vs. Jagdev Singh reported in (2016) 4 PLJR (SC) 78 and Syed Abdul Qadir and others vs. State of Bihar and others reported in (2009) 3 SCC 475, the same are not attracted in the present case. In the light of decision passed in L.P.A. No. 270 of 2021 wherein we have considered: (i) High Court of Punjab & Haryana Vs. Jagdev Singh reported in 2016 (4) PLJR (SC) 78

(ii) Chandi Prasad Uniyal and Others vs. State of Uttrakhand and Others reported in 2012(8) SCC417 (iii) Union of India Vs. Sri Bijoy Kumar reported in 2022 (1) PLJR (182) with reference to Thomas Denial’s case cited supra. In view of these facts and circumstances, the learned Single Judge has committed error in ordering recovery in easy installments while re-assigning first and second A.C.P. to the appellant. If any amount is already recovered from the appellant during the pendency of the litigation, same shall be refunded to the concerned appellant within a period of two months from the date of receipt of this order.

Accordingly, L.P.A. is allowed in part.