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Judgment
Ajay Mohan Goel, Judge (Oral)
By way of this writ petition, the petitioner has, inter alia, prayed for the following reliefs:-
(i)That the impugned order dated 20.05.2023 (Annexure P-1) refixing the pay of the petitioner w.e.f. the year 1999 may be quashed and set aside;
(ii)That the respondents may be directed to grant the pay as was received by the Petitioner prior to issuance of the aforesaid impugned order dated 20.05.2023, along with benefits which ought to have accrued on such pay till date, with all consequential benefits, including arrears;
(iii)That the impugned recovery orders dated 19.05.2025 (Annexure P-4) may be quashed and set aside.”
Brief facts, necessary for the adjudication of the instant petition, are that the petitioner was appointed as a Veterinary Officer in the year 1995, and she received the first Assured Career Progression Scheme (ACPS) benefit under the 4-9-14 pattern with effect from 01-01-2000 on completion of 4 years of service. It is further case of the petitioner that in the year 2005, she received the second benefit of ACPS on completion of 9 years of service and her pay-scale was revised in the year 2009 with effect from the year 2006, upon the revision of the pay-scale. Thereafter, petitioner was conferred the benefit of the third ACPS in the year 2010. It is further the case of petitioner that in terms of Annexure P-2, she had brought the factum of discrepancies in crediting of her leaves in her service record to the notice of the respondent-Department. As per Annexure P-3 dated 17.07.2012, the respondent-Department claimed to have had carried out necessary corrections in terms of the representation of the petitioner. Her grievance is that respondent No.2 issued an office order, dated 20.5.2023, Annexure P-1, in terms whereof her pay was refixed with effect from 01-01-1999, that is, after more than 24 years and impugned recovery of ₹25,08,551/- was ordered to be effected from the petitioner, vide Annexure P-4 dated 19.05.2025.
Learned Senior Counsel for the petitioner argued that a perusal of Annexure P-1 would demonstrate that the refixation of the pay was done with effect from 01.01.1999 up to 01.01.2023 on account of an alleged discrepancy of extraordinary leave from the year 1999 to 2009. By referring to Annexure P-6, learned Senior Counsel submitted that, in terms thereof, again the petitioner was called upon to deposit the amount of ₹25,08,551/-. Learned Senior Counsel submitted that in terms of the judgment of the Hon’ble Supreme Court in State of Punjab and others Vs Rafiq Masih (White Washer) and others (2015) 4 Supreme Court Cases, there are certain circumstances, which have been culled out by the Hon’ble Supreme Court of India, wherein no recovery is permissible in law. He submitted that one of such circumstance is recovery from employees when the excess payment has been made for a period in excess of 5 years before the order of recovery. Learned Senior Counsel submitted that in the present case, as the recovery stood ordered on account of certain excess payments made 5 years before the order of recovery was issued, the impugned orders are not sustainable in law.
On the other hand, learned Additional Advocate General referred to the reply filed by the State and submitted that the petitioner has been called upon to deposit the excess payment, which was made to her on account of wrong refixation of her pay, due to the fact that there was a discrepancy in her service record regarding the period of extraordinary leave availed with and without medical certificate in different years with effect from the year 1999 to year 2009, amounting to a total of 1158 days. He submitted that the factum of the said discrepancy in the service record of the petitioner came to the knowledge of the respondent-State when she applied for premature retirement on 16.03.2022 and the department initiated the process for verification of her service record. Thereafter, as steps were taken to recover the amount which was paid to the petitioner in excess and to which she was not entitled. He submitted that as the department is seeking recovery of the amount which otherwise was not payable to the petitioner, the recovery thereof cannot be resisted by her. He submitted that accordingly as there is no merit in the petition, the same be dismissed.
I have heard learned Senior Counsel for the petitioner and also learned Additional Advocate General for the State and have also perused the pleadings as also the documents appended therewith.
The moot issue for adjudication before this Court is as to whether under the peculiar facts and circumstances of this case, the order of recovery is sustainable in law or not.
A perusal of the reply filed by the respondent in general and preliminary submissions in particular demonstrate that recovery of ₹25,08,551/- in terms of Annexure P-4, dated 19-05-2023 is on account of refixation of pay of the petitioner due to the fact that there was a discrepancy in her service record regarding the period of extraordinary leave availed with and without medical certificate. Now, the years which have been mentioned in the preliminary submissions, when according to the department, there occurred a discrepancy in her service record regarding the period of extraordinary leave availed with and without medical certificate are 1999 to 2009. Impugned order qua recovery has been issued on 20.05.2023, meaning thereby, that the recovery order has been issued 16 years after the discrepancy in the service record or record of the petitioner regarding the period of extraordinary leave came to an end.
Not only this, a perusal of Annexure P-2 appended with the petition demonstrates that as far back as in the year 2012, the petitioner had brought this fact to the notice of Deputy Director, Animal Husbandry, Kangra at Dharamshala on the subject ‘discrepancy in e-Service Book’ that there were many mistakes in her service book and in Para-5 thereof, there was a specific mention that the discrepancies were also relatable to the extraordinary leaves which were availed by her and which, according to the petitioner, were not correctly depicted in her service record. Pursuant to the said representation of the petitioner, in terms of Annexure P-3, communication dated 17.07.2012, she was informed that necessary corrections stood carried out in her e-Service record.
If Annexure P-3 is to be believed, then it is not understood as to what is the foundation of the issuance of Annexure P-1 and Annexure P-4. In other words, if in terms of Annexure P-3 the discrepancies which were existing in the e-Service record of the petitioner stood rectified, then this means that obviously the discrepancies which were existing before 17.07.2012 qua the extraordinary leave relatable to the period in between 1999 to 2009 are presumed to have been rectified in the e-Service record. That being so, obviously, after 16 years as from the year 2009 and after after 13 years as from the year 2012, the State could not have had issued the impugned orders of recovery of an amount of ₹25,08,551/-from the petitioner.
Not only this, in the facts of this case, wherein the petitioner herself had pointed out certain discrepancies in her e-Service record in the year 2012, which in terms of Annexure P-3 were rectified by the State, obviously even if it is to be assumed that there were still certain discrepancies in her service book, then the same are not attributable to her.
That being the case, obviously the petitioner cannot now be made liable to make good the recovery for the acts of omission and commission of the respondent-Department. In fact, Hon’ble Supreme Court in Rafiq Masih (supra) has been pleased to observe that though 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, yet certain situations have been spelled out by the Hon’ble Supreme Court. Relevant paragraph of the judgment is quoted as under:-
“xx xx xx 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.”
The case of the petitioner is squarely covered by the judgment of the Hon’ble Supreme Court. As no recovery could have been effected from her, as excess payment was made for a period in excess of five years before the order of recovery was issued, the act of the respondents of issuing Recovery Notice to the petitioner is held to be bad in law.
Accordingly, in the light of the above discussions, the instant petition is allowed and impugned orders Annexure P-1 dated 20.5.2023 and Annexure P-4, dated 19.5.2023 are quashed and set aside. The respondents are directed not to effect any recovery from the petitioner in the light of Annexure P-1 and Annexure P-4. Pending miscellaneous applications, if any, also stand disposed of.