ORDER

Per: Dinesh Sharma, Member (A):

In this OA, the applicant has prayed for refund, with interest, of Rs.1,02,541/-recovered from him at the time of (2) his retirement in the year 2014, and for reinstating his pay and pension at the same level at which it should have been if the recovery and refixation, on account of an alleged overpayment due to wrong fixation since the year 1996, were not done. The applicant has challenged this since it has been done without following basic tenets of natural justice.

He has also cited the decision of the Hon’ble Supreme Court in State of Punjab & Others vs. Rafiq Masih (White Washer) & Others, (2015) 2 SCC (L&S) 33which prohibits any recovery in such cases.

2. The respondents have denied the claim stating that the applicant’s salary was wrongly fixed at the time of the implementation of the 5th Pay Commission. His pay was fixed at 6700/- though it should have been fixed at 6500/-. This mistake was discovered by the Accounts Department when the service records were thoroughly checked at the time of his retirement. This mistake has been corrected, the overpaid amount recovered and the salary and the pension have ben correctly fixed. The correction and the recovery are justified as per the decision of the Hon’ble Supreme Court in Chandi Prasad Uniyal and Others vs. State of Uttarakhand and Others (2012) 8 SCC 417.

3. No rejoinder has been filed. (3)

4. The matter was finally heard on 25.11.2021. Both the learned counsels of the parties reiterated their respective pleadings.

5. As is clear from the summary of pleadings given above, the decision in this matter depends on which decision of the Hon’ble Supreme Court, whether Rafiq Masih or Chandi Prasad Uniyal case, applies on the facts of this case.The Rafiq Masih’s case has listed the following situations where the recovery is clearly impermissible:

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.

(4)

6. In the present case, the employee belongs to Group ‘C’. The excess payments were made for a number of years, exceeding a decade, and the recovery has been made at the time of retirement. There is nothing on record to show any opportunity was given to the applicant to represent against when the pay was re-fixed downwards, to correct an alleged wrong fixation since the year 1996. Thus, we have no hesitation in finding that the decision of the Hon’ble Supreme Court in Rafiq Masih’scase squarely applies on the fact of this case and any recovery of any alleged excess payment, made over a long period of time, without any fault of the person concerned and without giving him an opportunity of making any representation against it, is unjustified. In Chandi Prasad Uniyal’s case, the Hon’ble Supreme Court found the recoveries justified when there was an excess payment from the exchequer, even without the fault of the concerned employee, especially in circumstances when the employee had himself consented to have such excess payments recovered. The reply of the respondents refers to such undertaking that is given at the time of fixing of pay at the time of any pay revisio