Dharindra Reang vs State Of Tripura And Ors

[1] Heard Mr. A. Bhowmik, learned counsel appearing for the petitioner. Also heard Mr. D. Bhattacharjee, learned G.A. appearing for the State-respondents.

[2] The case of the petitioner is that the respondent No.2, the Director of Health and Family Welfare Department, Government of Tripura, issued an order dated 4th June, 2015 wherein, he was ordered to recover the excess payment made in favour of him for wrong fixation of his pay.

[3] Mr. Bhowmik, learned counsel appearing for the petitioner has admitted the fact that some excess amount was paid to the petitioner due to wrong fixation of his pay and the petitioner was enjoying the same grade pay of the promotion posts by way of ACP. Further, Mr. Bhowmik, learned counsel found fault with the order of recovery of the amount which was made in excess for which the petitioner was actually entitled to.

[4] Mr. Bhowmik, learned counsel for the petitioner has submitted that the petitioner is a Class-III employee and applying the ratio laid down in State of Punjab & Others v. Rafiq Masih (White washer) & Others, reported in (2015) 4 SCC 334, the recovery order is impermissible in law in view of the authoritative decision of the Apex Court in Rafiq Mashi (supra). For purpose of reference, paragraph 18 is reproduced hereunder:

"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 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."

[5] The instant case meets one of those above situation. Admittedly, the petitioner Sri Dharindra Reang is a Class-III employee under the respondent No. 2 as such, in the light of the law laid down in Rafiq Mashi (supra), this Court is persuaded to pass the order, directing the respondents to recall the order of recovery dated 4th June, 2015 (Annexure-4 to the writ petition) keeping in mind that the petitioner is a Class-III employee. Consequently, the order dated 4th June, 2015 has no force in the eye of law.

[6] In the result, the instant writ petition is allowed with a direction that no recovery would be made from the salary of the petitioner, which was paid in excess of the amount which the petitioner was/is entitled to. Accordingly, the petition filed by the petitioner stands disposed of.