Recovery of salary from retired employees is impermissible without due process, especially when it exceeds five years, as established in Rafiq Masih.

JUDGMENT :

Alok Mathur, J.

1. Heard Shri Ankit Mishra, learned counsel for petitioner, learned Standing Counsel for the State and perused the material available on record.

2. With the consent of the parties, this petition is being finally heard and disposed of at this stage.

3. By means of the present writ petition the petitioner has challenged the order dated 06.08.2024 passed by the Superintendent of Police, Amethi. By means of the impugned order dated 06.08.2024, the salary of the petitioner has been re-fixed as it was found to be incorrectly fixed and accordingly deduction has been made from the salary of the petitioner since 01.01.2006 till his superannuation amounting to Rs.5,63,787/-.

4. It has been submitted by learned counsel for petitioner that the petitioner was lastly serving on the post of Sub Inspector in Civil Police. He superannuated from service on 31.08.2023. After the superannuation, all post retiral dues were paid and he is receiving his pension as fixed by issuance of the pension payment order. He further submits that without granting any opportunity to the petitioner by means of the impugned order, his salary from 2007 onward have been re-fixed and recovery has been made from the post retiral dues of the petitioner. It is further submitted by learned counsel for petitioner that this aspect of the matter has been considered by the Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 334 where guidelines with regard to the recovery was laid down by the Supreme Court. In paragraph no. 18 of the said judgment, the Court has observed as under:-

"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."

5. He further submits that the petitioner falls in Class-III posts and recovery has been made for payment made to the petitioner since 2007, which is more than 15 years before the date of his retirement. He further submits that the petitioner was never a party in the pay-fixation, which is the exercise conducted by the respondents themselves after looking to the service record of the petitioner. There is no provision for participation of an employee in fixation of his pay and it cannot be said that the petitioner in any case was responsible for any fraud or collusion with regard to fixation of his pay. He submits that in light of the aforesaid judgment, no recovery can be made from the post retiral dues of the petitioner, and accordingly, the impugned order is illegal and arbitrary. He further submits that no opportunity of hearing was given to the petitioner before denying the benefit of the grade pay as granted to him on successful completion of 24 years of service and the purported recovery for the excess amount so paid is also illegal.

6. Learned Standing Counsel on the