ORDER

14.08.2024 Order No.03

1. This matter is taken up through hybrid mode.

2. Heard Mr. R.K. Das, learned counsel appearing for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the Opp. Parties.

3. The present writ petition has been filed inter alia challenging the impugned order dtd.30.06.2018 and consequential order passed on 06.10.2018 under Annexure-1 & 2, whereby while reducing the Grade Pay so sanctioned earlier in favour of the Petitioner, direction was issued to recover the excess payment so drawn by the Petitioner.

4. In course of hearing learned counsel for the Petitioner contended that the Petitioner does not intend to challenge the order so far as it related to reduction of the Grade Pay is concerned in terms of the order issued under Annexure-1 & 2 and only is aggrieved by the order of recovery, to recover the excess payment drawn by the Petitioner.

4.1. It is contended that in terms of the earlier order passed by the authority Petitioner got the benefit of Grade Pay of Rs. 2000/- and 4200/-, but vide the impugned order while withdrawing the said benefit with fixation of Grade Pay as due and admissible to the Petitioner, direction has been issued to recover the excess payment. 4.2. It is contended that since the Petitioner without any fault of his own got the benefit, it cannot be recovered as Petitioner is a Class- IV employee, in view of the decision of the Hon’ble Apex Court State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors. reported in (2015) 4 SCC 334 so followed in the case of Thomas Daniel Vs. State of Kerala & Others reported in 2022 SCC OnLine SC 536.

4.3. Hon’ble Apex Court in Para 18 of the Judgment in the case of Rafiq Masih and in the case of Thomas Daniel has held as follows:- “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. But 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 balance of the employer’s right to recover.”

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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 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