Court upheld that recovery of excess payments from Class ‘C’ employees is impermissible when they are not at fault, reaffirming principles from prior judicial precedents.

JUDGMENT

In both these cases recovery is sought regarding amounts paid in excess due to in wrong fixation. Petitioners are Class ‘C’ employees and as far as amounts paid on the basis of the wrong fixation is concerned, if the fixation was not on account of any fault of the petitioners, the judgment inState of Punjab & Others v. Rafiq Masih (White Washer) [2015 4 SCC 334] will be applicable. No circumstances warranting non-application of the said judgment is pointed out. Even though it is stated that an undertaking had been given, that again will not in any manner justify the recovery as has been held inRafiq Masih (supra) and subsequent judgments. In W.P.(C) No. 9292 of 2021 a learned Single Judge of this Court had taken the view that the question essentially is whether, at the time of grant of pay as per the fixation, any undertaking had been given by the petitioner. I do not think it is necessary to go into the question since, the petitioners are Class ‘C’ employees.

2. InState of Kerala v. Vinod Kumar [2020 (4) KLT 230], this Court had considered the question whether the judgment of the Hon'ble Supreme Court inState of Punjab and Haryana v. Jagdev Singh [2016 KSC 6515] had made a complete departure from the principles laid down inRafiq Masih (supra). This Court held that inJagdev Singh (supra), the Hon'ble Supreme Court had only clarified that in cases of recovery from retired employees or who are due to retire within one year of the order of recovery, there would be no bar in ordering recovery if the employee concerned had executed an undertaking agreeing to refund any excess payment. This Court held that the said judgment cannot be read as having laid down the proposition that in every case where there is an undertaking, the recovery can be ordered from the employee concerned whatever be the point of time that such payment was made, since there is not even a suggestion in the judgment that in the event of there being an undertaking to refund excess pay, none of the situations envisaged inRafiq Masih (supra) can be pressed into service. This Court permitted only recovery of excess amounts given within a period of 5 years of the order of recovery. The counsel for the respondents submitted that the judgment of this Court in K.P. Krishnan Kutty v. State of Kerala and others [2022 (5) KLT 481], has consideredVinod Kumar (supra) and had permitted recovery. However, it can be seen from the judgment inKrishnan Kutty (supra) that on facts, it was a case where the recovery was found to be within the period prescribed in Situation No. 3 contemplatedRafiq Masih (supra).

3. I do not think that the said observations would be sufficient to deny relief to the petitioners. The petitioners in both these cases fall within the first situation contemplated in Rafiq Masih (supra) since all of them are falling within Class-III/Class-IV service. The Hon'ble Supreme Court in Rafiq Masih (supra) has specifically held that no recovery is possible in case of such employees. Petitioners are hence entitled to relief.

4. There writ petitions are allowed. Exts.P4, P5 & P6 in WP(C) No.27679/2023 are quashed. The petitioners will be entitled to the consequential reliefs. Exts.P5 & P6 in WP(C) No.26067/2024 are quashed and it is declared that the petitioner is not bound to refund any amount towards excess drawn pursuant to the refixation of pay done in Ext.P2 statement, Ext.P5 order and Ext.P6 notice. The retirement benefits payable to the 1^st petitioner in WP(C) No.27679/2023 shall be disbursed within one month from the date of receipt of a certified copy of this judgment.