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2019 Supreme(P&H) 2269
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Harsimran Singh Sethi, J.
Salamat Ali - Appellant
Versus
State Of Punjab And Others - Respondent
CWP-14325 of 2018
Decided On : 18-10-2019
Mr. Gopal Singh Nahel, Advocate, for the Appellant; Ms. Sunint Kaur, AAG, for the Punjab; Mr. V.K. Sandhir, Advocate, for the Respondent
Recovery of excess payment from a retired or near-retirement employee is impermissible under the law laid down by the Supreme Court in Rafiq Masih's Case.
Headnote:
Recovery - Employee's Salary - State of Punjab & Others vs. Rafiq Masih (White Washer) etc, (2014) 8 SCC 883 - The court discussed the guidelines provided by the Supreme Court in Rafiq Masih's Case, stating that recovery from retired or near-retirement employees, or employees who have been wrongfully required to discharge duties of a higher post, is impermissible. The recovery of excess payment from the petitioner, who was ten days away from retirement, was held to be impermissible under the law laid down by the Supreme Court in Rafiq Masih's Case.
Fact of the Case:
The petitioner, an employee nearing retirement, challenged the recovery order for excess payment passed by the respondents just 10 days before his retirement.
Finding of the Court:
The court held that recovery of the excess amount from the petitioner's salary after re-fixing his salary was impermissible under the law laid down by the Supreme Court in Rafiq Masih's Case.
Issues: Whether recovery of excess payment can be ordered from an employee nearing retirement and the release of withheld benefits.
Ratio Decidendi: The recovery of excess payment from a retired or near-retirement employee is impermissible under the law laid down by the Supreme Court in Rafiq Masih's Case.
Final Decision: The court allowed the writ petition, set aside the recovery order, and directed the respondents to release the recovered amount and any other withheld benefits to the petitioner.
JUDGMENT
Harsimran Singh Sethi, J. - In the present writ petition, the grievance which is being raised by the petitioner is that at the fag end of his career, when he was about to retire on 31.03.2016, the respondents have passed impugned order dated 21.03.2016 (Annexure P/1) for recovery of Rs.1,04,622/- by re-fixing his salary. Learned counsel for the petitioner argues that no recovery can be ordered from an employee, who is nearing his retirement or is already retired keeping in view the settled law settled by Hon'ble Supreme Court of India in State of Punjab & Others vs. Rafiq Masih (White Washer) etc, (2014) 8 SCC 883.
2. The facts as mentioned in the writ petition are that the petitioner joined as Panchayat Secretary on 4.3.1977. Thereafter, he was promoted as Panchayat officer on 17.10.2012, from which post, he ultimately retired on attaining the age of superannuation on 31.03.2016. On 21.03.2016 i.e. about 10 days prior to retirement of the petitioner, respondents passed an order that the salary of the petitioner was wrongly fixed and upon rectifying the said mistake by re-fixing his salary, it is found that petitioner was paid Rs. 1,04,622/- in excess, which amount is to be recovered from the petitioner and Rs. 10,000 was recovered from the salary of the petitioner in the month of February, 2016 and remaining was to be recovered from leave encashment, for which the petitioner became entitled after his retirement. In the present writ petition, the challenge is to said order of recovery dated 21.03.2016 (Annexure P/l) on the ground that no recovery could have been done by the respondents as the petitioner was not responsible for the excess amount, which was paid to the petitioner, as the salary was fixed by the respondents themselves and no fraud was committed by the petitioner in any manner, therefore the payment of excess amount could not have been recovered from the petitioner.
3. Upon notice of motion, respondents including respondent No.4 have filed reply. In his reply, respondent No.4 has stated that petitioner was aware of the fact that he was getting higher salary than he was entitled for and, therefore, excess amount paid to the petitioner has rightly been ordered to be recovered from him.
4. I have heard learned counsel for the parties and have gone through the record with their able assistance.
5. The only question, which arises for consideration of this Court in the present writ petition, is as to whether an employee, who is on the verge of his retirement, recovery of the excess payment can be done from his/her pensionary benefits after re-fixing his salary. This question has already been answered by Hon'ble Supreme Court of India while deciding Rafiq Masih's Case (Supra), wherein guidelines have been given as to under what circumstances recovery cannot be ordered. Relevant paragraph of the said judgement is as under.
"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-Ill 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 employ
