Rumail Singh vs State Of H.P. & Others

Vivek Singh Thakur, J

Petitioner, who was serving with respondent No. 2-Corporation, retired as Superintendent Grade-I on 30.4.2016. Petitioner has approached this Court against process of recovery communicated to him vide latter dated 17.7.2018 for amount alleged to have been paid to him in excess due to re-fixation of pay.

Learned counsel for the petitioner submits that till retirement of the petitioner on 30.4.2016, no such recovery was ever pointed out or proposed and, therefore, in view of judgment passed by the Supreme Court in State of Punjab and others Vs. Rafiq Masih, (2015) 4 SCC 334 (2), respondents are not entitled to recover the amount as proposed and directed vide communication dated 17.7.2018 (Annexure A-4).

In Rafiq Masih’s case following principles and guidelines have been laid:-

“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.”

Considering the facts of present case in the light of guidelines laid down by the Supreme Court in Rafiq Masih’s case, it is apparent that present case is covered under para 18(ii) supra, whereby it has been held that recovery from retired employees, or employees who are due to retire within one year of the order of recovery, would be impermissible under law.

In view of above, impugned recovery process dated 17.7.2018 (Annexure P-4) is quashed and petition is allowed in aforesaid terms.

The petition is disposed of so also pending application(s), if any.