Pet it ioner v. St at e of Ut t arakhand Ot hers

challenged deduct ion of t he aforesaid am ount from his grat uit y.

4. A count er affidavit has been filed by Superint endent of Police, Rudraprayag, wherein it is st at ed t hat t he Finance Cont roller, Police Headquart ers t he pay fixat ion of t he pet it ioner t o be erroneous.

5. Learned St at e Counsel, by referring t o t he count er affidavit filed on behalf of respondent no. 4, subm it s t hat due t o m ist ake, t he pay of t he pet it ioner was fixed at higher level t han what he was ent it led t o and ult im at ely t he com pet ent aut horit y correct ed t he m ist ake aft er calculat ion, it was found t hat excess am ount was paid t o t he pet it ioner due t o wrong fixat ion of pay, which has now been deduct ed from his grat uit y.

6. Hon’ble Suprem e Court in t he case of St at e of Punj ab v. Rafiq Masih, report ed as ( 2015) 4 SCC 334, has held t hat in cert ain condit ions, excess paym ent m ist akenly m ade by t he em ployer shall not be recoverable.

7. Learned St at e Counsel, however, subm it s t hat t he prot ect ion of t he aforesaid law would not 2 be available if ( i) t he concerned em ployee has received excess paym ent by playing fraud or by adopt ing deceit ful m eans; or ( ii) he, before receiving t he am ount , has given an undert aking t hat he will refund whole or part of t he am ount , in case it is lat er found t hat he is not ent it led t heret o.

8. Elaborat ing his subm ission, learned St at e Counsel cont ends t hat an em ployee, who received excess paym ent , if is responsible for receiving such excess paym ent , t hen he will not be ent it led t o any prot ect ion, in law or in equit y, against recovery of such excess am ount . Learned St at e Counsel furt her subm it s t hat no one can be perm it t ed t o t ake benefit of his own wrong, t herefore an em ployee, who has induced his em ployer t o pay him excess am ount by m isrepresent at ion, cannot t hen cont end t hat what ever received by him cannot be recovered.

9. Learned St at e Counsel relied upon a j udgm ent rendered in t he case of High Court of Punj ab and Haryana & Ot hers v. Jagdev Singh, report ed as ( 2016) 14 SCC 267. I n t he said j udgm ent , Hon’ble Suprem e Court held t hat t he principle t hat no recovery can be m ade from ret ired em ployees, or em ployees who are due t o ret ire wit hin one year, will not be at t ract ed t o a case where t he em ployee t o whom t he excess paym ent is m ade was clearly placed on not ice t hat any paym ent found t o have been m ade in excess would be required t o be refunded and t he em ployee furnished an undert aking while opt ing t he 3 revised pay scale. Para 9, 10, 11 and 12 of t he said j udgm ent are ext ract ed below: “ 9 The subm ission of t he Respondent , which found favour wit h t he High Court , was t hat a paym ent which has been m ade in excess cannot be recovered from an em ployee who has ret ired from t he service of t he st at e. This, in our view, will have no applicat ion t o a sit uat ion such as t he present where an undert aking was specifically furnished by t he officer at t he t im e when his pay was init ially revised accept ing t hat any paym ent found t o have been m ade t o be in excess would be adj ust ed. While opt ing for t he benefit of t he revised pay scale, t he Respondent was clearly on not ice of t he fact t hat a fut ure re- fixat ion or revision m ay warrant an adj ust m ent of t he excess paym ent , if any, m ade. liable 10 I n St at e of Punj ab v. Rafiq Masih t his Court held t hat while it is not possible t o post ulat e all sit uat ions of hardship where paym ent s have m ist akenly been m ade by an em ployer, in t he following sit uat ions, a recovery by t he em ployer would be im perm issible in law: ( i) Recovery from em ployees belonging t o Class- I I I and Class- I V service ( or Group 'C' and Group 'D' service) . ( ii) Recovery from ret ired em ployees, or em ployees who are due t o ret ire wit hin one year, of t he order of recovery. ( iii) Recovery from em ployees, when t he excess paym ent has been m ade for a period in excess of five years, before t he order of recovery is issued. ( iv) Recovery in cases where an em ployee has wrongfully been required t o discharge dut ies of a higher post , and has been paid accordingly, even t hough he should have right fully been required t o work against an inferior post . ( v) I n any ot her case, where t he Court arrives at t he conclusion, t hat recovery if m ade from t he em ployee, would be iniquit ous or harsh or arbit rary t o such an ext ent , as would far out weigh t he equit able balance of t o recover. ( em phasis supplied) . t he em ployer's 11 The principle enunciat ed in Proposit ion ( ii) above cannot apply t o a sit uat ion such as in t he present case. I n t he present case, t he officer t o 4 whom t he paym ent was m ade in t he first inst ance was clearly placed on not ice t hat any paym ent found t o have been m ade in excess would be required t o be refunded. The officer furnished an undert aking while opt ing for t he revised pay scale. He is bound by t he undert aking. 12 For t hese reasons, t he j udgm ent of t he High Court which set aside t he act ion for recovery is unsust ainable. However, we are of t he reasonable inst alm ent s. We direct t hat t he recovery be m ade in equat ed m ont hly inst alm ent s spread over a period of t wo years.” recovery should be m ade t hat t he

10. I n t he case of Subhash Chand & Ot hers v. Punj ab Wat er Resources Managem ent Developm ent Corporat ion Lt d., a learned Single Judge of Punj ab and Haryana High Court accept ed t he plea raised by writ pet it ioner, who served as Class I I I em ployee, t hat aft er ret irem ent , am ount already paid t o him cannot be recovered and allowed t he writ pet it ion by relying on t he law declared in t he case of St at e of Punj ab v. Rafiq Masih ( supra) . The said j udgm ent , however, was reversed by Division Bench of t hat Court in LPA No. 2230 of 2016, by relying on t he law declared by Hon’ble Apex Court in t he case of High Court of Punj ab and Haryana & Ot hers v. Jagdev Singh. Para 13 and 14 of t he j udgm ent rendered by Division Bench of Punj ab and Haryana High Court in t he case of Punj ab Wat er Resources and Developm ent Corporat ion Lt d. v. Subhash Chand & Ot hers are ext ract ed below: “ 13. Considering t he aforesaid enunciat ion of laid down by Hon’ble t he Suprem e Court , in our view, t he order passed by t his Court in Ravinder Paul Malhi’s case ( supra) , 5 which was decided on 21.12.2015, will not com e t o t he rescue of t he respondent s/ writ pet it ioners, where a dist inct ion was carved out regarding paym ent of em olum ent before t he undert aking was furnished and subsequent t heret o. I n t he case in hand, definit e st and t aken by t he appellant is t hat ent ire am ount , which is sought t o be recovered from t he respondent s/ writ pet it ioners was paid t o t hem only aft er t hey had furnished t he undert aking.

14. For t he reasons m ent ioned above, t he present appeal is allowed. The order dat ed

6.5.2016 passed in t he writ pet it ion and t he order dat ed 17.8.2016 passed in Review Applicat ion are set aside. As a consequence t hereof, t he writ pet it ion st ands dism issed.”

11. SLP No. 9015 of 2018, filed by t he em ployee against j udgm ent rendered by Division Bench t he case of Punj ab Wat er Resources Managem ent and Developm ent Corporat ion Lt d. v. Jasbir Singh, was dism issed by Hon’ble Suprem e Court vide order dat ed 2.7.2018.

12. Learned St at e Counsel subm it s t hat pet it ioners have given an undert aking before t he com pet ent aut horit y t hat t he am ount , which is being paid t o t hem , if found t o be not adm issible, or in excess of what is due, shall be recoverable by t he em ployer/ St at e.

13. Learned Counsel t he pet it ioners, however, disput es t he subm ission m ade by learned 6 St at e Counsel and subm it s t hat no undert aking was given by t he pet it ioners.

14. Be t hat as it m ay. From t he aforesaid j udgm ent s, it is clear t hat excess am ount , if paid t o an em ployee, would be recoverable ( i) only when t he em ployee concerned in any m anner responsible for such excess paym ent , e.g. by playing fraud or by adopt ing ot her deceit ful m eans; or ( ii) where an em ployee has given an undert aking before grant of such m onet ary benefit t o t he effect t hat in case t he am ount paid t o him is found t o be not adm issible or is found t o be in excess of what is due t o him , t hen he will refund such am ount / excess am ount .

15. Writ pet it ions are, accordingly, disposed of by providing t hat recovery shall be perm issible from t he pet it ioners, if and only if t heir case falls wit hin eit her of t he t wo cont ingencies m ent ioned in Paragraph No. 12 of t his j udgm ent . ( M a n o j K u m a r Ti w a r i , J.) 1 8 .9 .2 0 2 5 Pr PRABODH KUMAR DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3a082a00a95aff911a9559743af8f21c50602ff6eae4e61af3aeab198d462503, postalCode=263001, st=UTTARAKHAND, serialNumber=0DC111E8D8CA66E16B940EFDF806ACCC1AB588052DF6FCA58C67F3C91 957BE53, cn=PRABODH KUMAR 7