Point of Law: Employer would not recover amount provided excess payment was not attributable to any fraud or misrepresentation by employee.

JUDGMENT :

1. The instant appeal is directed against the order of learned Single Judge dated 22.11.2022 by which the writ petition filed by the sole respondent (hereinafter referred to as the "writ petitioner") was allowed and direction was issued to refund Rs.3,46,804/- to him. The amount aforesaid is the sum deducted by the State from his pensionary benefits towards house rent allowance alleged to be wrongly paid to him while in service. The writ court in issuing the said direction, has placed reliance on the judgement of the Supreme Court in State of Punjab and others v. Rafiq Masih (White Washer), 2015 (4) SCC 334.

2. The facts in brief are that the writ petitioner retired on 30.06.2016 from the post of Teleprinter Operator at Collectorate, Allahabad upon attaining age of superannuation. During his service tenure, he was allotted an official accommodation in the year 1981. According to the case of the appellants, the writ petitioner did not deposit house rent in terms of the allotment letter and at the same time was also given house rent allowance every month until his retirement. On 03.10.2016 i.e. after retirement, the A.D.M, City, Allahabad passed an order holding that the petitioner had received Rs.2,88,644/- as house rent allowance in an irregular manner and in addition, according to the norms, Rs.58,260/- would be rent due till 30th June, 2016, consequently, he was directed to deposit Rs.3,46,904/- in government treasury within three days failing which, the same would be recovered from his pensionary benefits. As the writ petitioner did not deposit the amount in government treasury, it was deducted from his pensionary benefits. The representation filed by the petitioner was rejected by the District Magistrate by order dated 22.05.2020 impugned in the writ petition.

3. Shri Ramanand Pandey, learned Additional Chief Standing Counsel appearing for the State submitted that under Government Order dated 15.12.1981, the writ petitioner was liable to pay rent of the government accommodation he was occupying during his service tenure. He further submits that in case, an employee occupying a government accommodation does not pay rent then he would not be entitled to house rent allowance. It is submitted that by mistake the State paid house rent allowance to the writ petitioner but as soon as the said mistake was discovered, the Additional District Magistrate, City passed the order directing the writ petitioner to refund the amount and when it was not refunded, the amount was rightly deducted from the pensionary benefits. It is sought to be contended that the judgement of the Supreme Court in Rafiq Masih would not apply to the facts of instant case as that was a case where there was wrong fixation of salary while the instant matter relates to house rent allowance and is governed by a government order.

4. On the other hand, learned counsel for the respondent (writ petitioner) submits that the judgement of the Supreme Court applies on all fours to the instant case. It is urged that there is no finding in the impugned order that any fraud or misrepresentation was played by the writ petitioner at any stage. He submits that the impugned recovery after retirement of the writ petitioner had caused grave injury to him and the writ court has rightly directed the appellants to release the said amount.

5. The judgement of the Supreme Court in Rafiq Masih (supra) is not confined to cases where there is wrong fixation of salary and as a result whereof some excess amount was paid to an employee. In fact, the Supreme Court had decided a batch of petitions where the larger issue was whether an employer is entitled to recover monetary benefits mistakenly given to the employee. The mistake could have occurred on account of a variety of reasons; including the grant of a status, which the concerned employee was not entitled to; or payment of salary in a higher scale, than in consonance of the right of the concerned employee; or because of a wrongful fi