Recoveries by the employer would be impermissible in law in situations where the recovery would be iniquitous and arbitrary, as outlined by the Supreme Court.

Heard counsel for the parties.

2. The learned Single Judge by the impugned judgment dated 25th November, 2008 passed in W.P.(S) No.712 of 2008 refused to quash the order of retirement bearing no.2341 dated 29th December, 2007 wherein the writ petitioner/appellant herein was declared to have retired from service w.e.f. 31st May, 1993 and payments made to the petitioner since 1st June, 1993 were ordered to be recovered from his retirement benefits.

3. The facts which are not in dispute between the parties are as under:-

Writ petitioner entered into service on 1st May, 1975 at Patratu Thermal Power Station (in short PTPS) on the post of Dish Washer. His service book was opened in the year 1991 where his date of birth was recorded as 3rd February, 1953. This apparently was on the basis of a certificate of fitness issued by the Medical Officer of the PTPS, who assessed the age of the petitioner as 35 years on his self declaration and by his appearance. The respondents allowed him to continue in service till March, 2007 when he was asked by the Joint Secretary, JSEB through memo no.521 dated 9th March, 2007 to explain as to why he be not ordered to be retired from service w.e.f. 31st May, 1993 as his date of birth recorded in the biodata and also in nomination paper relating to provident fund is 2nd May, 1933. Petitioner submitted his explanation that he was illiterate and had only put his signature over the bio-data and the nomination form whose entries were filled up by the Office Assistant. He was again asked to show cause as to why he be not be retired w.e.f. 31st May, 1993 and the excess payment made be not be recovered from the retirement benefits. His second show cause again was not found satisfactory. Accordingly, he was made to retire w.e.f. 31st May, 1993 by the order impugned dated 29th December, 2007 and excess payment made to him since 1st June, 1993 were ordered to be recovered.

4. Learned counsel for the appellant submits that it is the order of recovery upheld by the learned Single Judge which is the main reason for the appellant to be aggrieved. It is contended that the employer allowed the petitioner to continue for 14 long years in service and also took work from him all along. It is not that these documents were not in the conscious knowledge and possession of the employer and his controlling authority. Even as per the admitted facts of the parties there could be two date of births one as reflected in the service book and the other as reflected in the bio-data and the nomination form. The petitioner is an illiterate employee working on a Class IV post of the Dish Washer. No documents relating to his service were in his possession. If work has been taken after 1993 of a post of Dish Washer, then recovery of the entire salary and other emoluments paid over a period of 14 years would not only lead to taking Begar in teeth of Article 23 of the Constitution of India but also prove to be highly iniquitous and arbitrary. The judgment relied upon by the learned Single Judge in the case of Radha Kishun Versus Union of India & Ors. reported in (1997) 9 SCC 239 has been considered by the subsequent judgment rendered by the Apex Court in the case of State of Bihar & Ors. Versus Pandey Jagdishwar Prasad reported in (2009) 3 SCC 117 and distinguished. The Apex Court has clearly held in favour of the employee in the case of Pandey Jagdishwar Prasad. The facts of his case were distinguishable from that of Radha Kishun's case where there was no dispute as to the date of retirement of the appellant. Learned counsel for the appellant has also relied upon the judgment rendered by the Hon'ble Supreme Court in the case of State of Punjab & Ors. Versus Rafiq Masih (White Washer) & Ors. reported in (2015) 4 SCC 334. It is submitted that Apex Court has examined the precedents on the instant subject and laid down detailed guidelines whereunder recoveries by the employer would be impermissible in law. The underlying basis to deny recove