Recovery of excess salary is impermissible when employees are not at fault, emphasizing equitable relief to prevent undue hardship.

JUDGMENT :

Ajit Kumar, J.

1. This bunch of petitions arises out of order of recovery proceedings initiated by the respondents for alleged wrongful pay fixation for which it was claimed that petitioners got paid excess amount of salary. Since all the petitions except for reference to amount and order impugned raise same controversy on facts, the entire bunch is disposed of by means of this common judgment and order. For the purposes of facts and legal principles reference is made to the pleadings raised in Writ – A No.- 1750 of 2022, which is a leading petition.

2. Learned counsel for the petitioners have argued that petitioners were not at all responsible for any particular pay fixation which is alleged by the respondents to have been wrongly done and has resulted in excess payment of salary to the petitioners. Pleadings to this effect has been taken in paragraph 14 of the writ petition. Identical stand has been taken by several other petitioners whose petitions have been tagged with this bunch.

3. Besides above it is argued that even if the correction was to be carried out and it was determined that petitioners had been paid excess salary, then no recovery could have been made from him, he being not responsible for the same. Thus, learned counsel for the petitioners have argued that neither on principle of of suppressio veri, nor on the principle of suggestio falsi petitioners in any manner can be held responsible for alleged wrongful pay fixation.

4. Learned counsel for the petitioners have also relied upon the judgment of Supreme Court in the case of State of Punjab and others v. Rafiq Masih (White Washer) (2015) 4 SCC 334 as well as another judgment of Supreme Court in the case of Thomas Daniel v. State of Kerala and others , AIR 2022 SC 2153 Paragraph 12 of the judgment of Rafiq Masih (supra) is reproduced hereunder:

"12. 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. Paragraphs 9, 10, 11 and 12 of the judgment of Thomas Daniel (supra) is also reproduced hereunder:

"9. This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the emplo