JUDGMENT

Dated this the 6th day of April, 2022 The petitioner retired from the service of the Regional Cancer Centre/1st respondent on 31.12.2020, as Security Guard Grade -I. By Ext. P5 order dated 13.01.2021, the Director of the first respondent sanctioned terminal surrender of earned leave and permitted to receive cash equivalent of the leave salary as provided in Rule 39, Chapter IV of the Central Civil Service Leave Rules. The petitioner, is aggrieved by the first respondent’s refusal to disperse the earned leave surrender amount, retirement gratuity, provident fund and pension legitimately due to him.

2. Learned Counsel for the petitioner relied on the decision in State of Punjab v. Rafiq Masih (White Washer) [(2015) 4 SCC 334] and Sushil Kumar Singhal v. Pramukh Sachiv Irrigation Department and others [(2014) 16 SCC 444] to contend that there cannot be any recovery from a retired employee. The learned Counsel also pointed out that W.P(C).No.6804 of 2021 and connected cases filed by similarly placed employees were allowed by this court vide judgment dated 23.12.2021.

3. Heard, learned Government Pleader and learned Standing Counsel for the first respondent, who conjointly made the following submissions; The petitioner was initially appointed on consolidated pay on purely temporary basis and was regularized in service only with effect from 06.09.2010, as Security Guard in the pay scale Rs. 4470- 7440/- with grade pay of Rs. 1650/-. The pay fixation was conditional and subject to approval by the Government. The Government never granted approval and even though the petitioner was required to execute a bond, undertaking to refund the excess salary, if any paid to him based on the fixation of pay, the petitioner never obliged. After petitioner's retirement, his pay was provisionally fixed and only then it was noticed that a sum of Rs. 5,89,007/- had been paid in excess of his salary. Accordingly, Rs. 1,26,190/- was adjusted towards the retirement gratuity payable to the petitioner and Rs. 1,89,285/- towards the cash equivalent of terminal leave surrender. After adjusting the above amounts, a sum of Rs. 2,73,532/- is still due and as such, the petitioner is not entitled for any of the reliefs sought.

4.The first respondent has no case that the petitioner was in any manner responsible for the alleged excess payment of salary, or even that the petitioner was aware of the excess payment. The petitioner’s pay scale was fixed by the first respondent itself and was in force from 06.09.2010 onwards. The re-fixation of salary was done after his retirement. As such, the situation is squarely covered by the decision in State of Punjab v. Rafiq Masih (2015) 4 SCC 334 18. Being relevant the relevant paragraph of Rafiq Masih is extracted hereunder;

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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the 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