ORDER

25.07.2024 Order No. 02

1. This matter is taken up through hybrid mode.

2. Heard Mr. L.K. Mohanty, learned counsel appearing for the Petitioner and Mr. S. Rath, learned Addl. Standing Counsel appearing for the Opp. Parties.

3. Petitioner has filed the present writ petition inter alia challenging the direction to recover the excess amount in terms of the impugned order dtd.24.10.2017 under Annexure-4.

4. It is contended that Petitioner while continuing in service, she got the benefit of RACP w.e.f.01.01.2013 vide order dtd.15.07.2014 under Annexure-3. It is contended that while in receipt of the said benefit, without issuing any show-cause and any prior notice, the said benefit was cancelled vide the impugned office order dtd.24.10.2017 and direction was issued to recover the excess payment so received by the Petitioner w.e.f.01.01.2013. It is contended that since Petitioner without any fault of her own was extended with the benefit and she got the same w.e.f.01.01.2013 in terms of the order issued under Annexure-3 while cancelling the same, no direction could have been issued to recover the excess payment in view of the decision in the case of 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 .

4.1. Hon’ble Apex Court in Para 18 of the Judgment in the case of Rafiq Masih and in Para 13 of the judgment 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.”

xxxx xxxx xxxx “ 13. In State of Punjab v. Rafiq Masih (White Washer) (2015) 4 SCC 334, wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:

“8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the e