S/S) Trilochan Dani v. State of Uttarakhand and others

Order

- “In the case of State of Punjab and others Vs. Rafiq Masih (2015) 4 SCC 334, the Hon’ble Supreme Court laid down the principles, as to under what circumstances, the recovery from the Government servants may not be issued. Is it not its violation? Has the petitioner played any fraud or misrepresentation? Let the State file a short counter affidavit specifying categorically in it, whether such recovery is permissible, in view of the law laid down by the Hon’ble Supreme Court in the case of Rafiq Masih (supra)? If it is not so, why it may not be treated as contempt matter defying the directions of the Hon’ble Supreme Court? This Court writes so because in most of the cases, the Government machinery is issuing recovery in the matters that are covered by the judgment in the case of Rafiq Masih (supra). Let such affidavit be filed within two weeks from today.

List on 25.04.2023 as the first case after fresh.”

6. State has not chosen to file any counter affidavit. This is very sorry state of affairs. A retired person knocks at the door of the Court. The Court seeks assistance of the State Government by way of requesting the State Government to file a short counter affidavit as to how in defiance of the judgment of the Hon’ble Supreme Court in 3 Rafiq Masih (supra) such recovery can be made. But, the State, as stated, has not chosen to file any response.

7. Learned counsel for the petitioner would submit that the petitioner did not play any fraud or misrepresentation in receiving salary; the petitioner is a Group ‘C’ employee and his case is covered by the judgment passed in the case of Rafiq Masih (supra).

8. Learned State Counsel submits that he had sought instruction from the Secretary, School Education, Government of Uttarakhand, Dehradun as well as the Director, Elementary Education, Uttarakhand, Dehradun on the pointed query of the Court dated 27.03.2025, but no response has been received; therefore, short counter affidavit could not be filed.

9. Learned State Counsel would submit that as per the judgment of the Hon’ble Apex Court in the case of Rafiq Masih (supra), unless there is a misrepresentation or fraud played by the employee, particularly in the case of Group “C” and Group “D”, recovery cannot be made.

10. The communication dated 13.08.2024 of the respondent no. 4/Deputy Education Officer, Haldwani reveals that excess payment was made to the petitioner. It does not say that the petitioner procured excess payment. It does not that any misrepresentation or fraud was played by the petitioner. This communication dated 13.08.2024 is annexure 4 to the writ petition. Subsequently, by impugned order dated 10.10.2024, the respondent no. 5/Chief Treasury Officer, Nainital deducted Rs. 3,57,898/- from the retiral dues of the petitioner.

11. In the matters of recovery from the Government employee, in the case of Rafiq (supra), the Hon’ble Supreme Court laid down the guidelines in para 18 as hereunder:- 4 “18. It is not possible to postulate all situations of hardship which would govern employees o 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, summarize the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) (ii) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D Service). 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.”

12. The petitioner was a Group “C” employee. He was an Assistant Teacher in Primary School. He did not make any misrepresentation or did not play any fraud. He was allegedly paid excess salary. He retired in the year 2023 and the recovery was made in the year 2024. In view of the directions passed by the Hon’ble Supreme Court in the case of Rafiq Masih (supra), such recovery could not have been made. Therefore, while the order of recovery needs to be set aside, direction needs to be issued to the respondent authorities to refund the amount so recovered from the petitioner and the writ petition deserves to be allowed. 5

13. The writ petition is allowed. The order of deduction of Rs. 3,57,898/- as passed by the respondent no. 5 on 10.10.2024 is set aside. The respondents are directed to refund the amount of Rs. 3,57,898/- recovered from the retiral dues of the petitioner.

14. Let a copy of this judgment be sent to the Chief Secretary, Government of Uttarakhand, Dehradun with a request to issue necessary directions to the concerned Department so that the queries raised by the Court may be responded on time and the Court may be assisted in arriving at a just decision of the case. Avneet/ (Ravindra Maithani, J.) 25.04.2025