The inability to recover from retired employees for payments made over five years prior and the requirement to follow due process for recovery.

JUDGMENT :

Heard the parties.

2. The petitioner has challenged the order contained in Memo No. 195 dated 19.12.2015 (Annexure-8), whereby, a sum of Rs. 8,30,403.57 ordered to be deducted from the salary of the petitioner.

3. The relevant facts of this writ petition are that the petitioner joined as Junior Engineer on 3.2.1984 and while he was posted as Junior Engineer at Rural Works Department, Works Division, Simdega-I, he took advance of Rs. 8,30,403.57 to execute different Government schemes, in the financial year 1991-92, which according to the petitioner, he duly accounted for all the advances, which were made to him, as per measurement book. To fortify this statement, the petitioner submitted various letters to the Department, which are at Annexure-1 series. Even the petitioner wrote a letter to the Principal Secretary of the Department to enquire the matter and accordingly, accounts may be adjusted. Thereafter, the petitioner also requested the Under Secretary of the Department and the Superintending Engineer to enquire about the said fact, but no action was taken by the superior officers. However, at the verge of retirement, the impugned letter dated 19.12.2015 was served to the petitioner for recovery of the aforesaid amount and in fact, Rs. 68,925/- has already been deducted from the salary of the petitioner. With these compelling situations, the petitioner has knocked the door of this Court.

4. Learned counsel for the petitioner submits that the order impugned for recovery of the amount is neither sustainable in law nor on facts, inasmuch as, no recovery from the employee can be made, when the payment has been made for a period in excess of five years before the order of recovery is issued, in view of the celebrated judgment of the Hon’ble Supreme Court of India in the case of State of Punjab vs. Rafiq Masih (whitewasher) & Ors., reported in (20015) 4 SCC 334. Learned counsel submits that the order of recovery dated 19.12.2015 has already been stayed by this Court. He also submits that even no proceeding was initiated in the entire service career of the petitioner and the entire amount has been utilized and account of statement has already been given to the Department.

5. Learned counsel for the respondent submits that the petitioner has not given any account of statement related to the alleged amount, which he has received from the Department. Though several letters were written by the Department for refunding the amount or giving the account statement regarding the amount which has been utilized, but till date, the petitioner has failed to do so. Learned counsel, however, submits that admittedly no proceeding has ever been initiated in the entire service career of the petitioner after 1992 and the petitioner has superannuated in the year 2017. Since the petitioner is precluded from initiating any proceeding in accordance with law, the same was not done. Learned counsel submits that there is a loss to the State exchequer of Rs. 8,34,403.57 which can be recovered from the petitioner even after retirement.

6. Be that as it may, having heard the rival submissions of the parties and upon perusal of the documents brought on record, this Court is of the considered view that the case of the petitioner needs consideration. Law is well settled on the point of recovery by the Hon’ble Supreme Court in celebrated judgment in the case of State of Punjab vs. Rafiq Masih (whitewasher) & Ors (supra), wherein, in para-18 of the said judgment, Their Lordships have summarized the following few situations, in which recoveries by the employers would be impermissible in law. Para-18 of the said judgment is reproduced herein below:-

“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, sum