Jammu, March 28: in WP(C) No. 719/2025 CM No. 1729/2025 titled Union Territory of J&K through Commissioner/Secretary to Government, Jal Shakti (PHE) Department Vs Joginder Paul after hearing a bench of HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE MA CHOWDHARY, JUDGE ORDERED as under:-
TASHI RABSTAN,CJ: WP(C) No. 719/2025
01. This writ petition has been filed by the writ petitioners under Article 226 of the Constitution of India against the judgment and order dated 20.06.2024 passed by the learned Central Administrative Tribunal in OA No. 65/2023 tilted „Joginder Paul v. Union Territory of J&K and others‟.
02. The respondent-applicant before the Central Administrative Tribunal, Jammu Bench (hereinafter called as, “the Tribunal”) is Class-C/D employee of the Jal Shakti (Public Health Engineering) Department who challenged recovery proceedings initiated against him, the benefit of ITI trained was conferred to him by the Chief Engineer, PHE Department Jammu in terms of implementation of SRO-87 of 1968 and SRO 149 of 1973.
A notice of recovery in pursuance of excess-drawal of pay in terms of SRO 149 of 1973 was issued by the respondents to other similarly situated employees of PHE, Division Kathua, which was challenged before this Court by way of SWP No. 1001/2015, which was disposed of vide judgment dated 07.09.2018, whereby the impugned orders/recovery notices were quashed and the respondents were directed to allow the petitioners to draw the salary in the pay-scales given to them in terms of SRO-149 of 1973 with a further direction that the pension of those petitioners, who have retired shall not be affected by the impugned orders.
03. The applicant/respondent herein was getting the benefit of revised pay scale/enhanced salaries in terms of SRO 87 of 1968 and SRO 149 of 1973 and he was issued show cause notices all dated 11.12.2021 for incorrect implementation of SRO 59 and SRO 149 to effect recoveries in line with the court orders referred in the notice and the applicant was directed to explain as to why the aforesaid benefits availed by him may not be withdrawn and why necessary recovery may not be effected from his salary, to which the applicant filed reply, however, the respondents without considering the reply have straight-way effected the recoveries from the salary of the applicant for the month of December, 2021. Aggrieved of the action of the petitioners herein for recovery, the applicant-respondent herein approached the Tribunal by filing Original Application No. 65/2023, on the ground that as per law settled by the Apex Court in case of “State of Punjab v. Rafiq Masih”, AIR 2015 SC 696, no recoveries against any benefit so drawn by a Class-C/D employee can be initiated, if the same has been provided by the department on their own and there is no malafide or foul play on the part of the employees.
04. Respondents-petitioners herein have admitted that the grant of benefits of higher pay scale have wrongly been granted in favour of the applicant-respondent herein and after realizing they initiated the process of recovery from them.
05. The case of the applicant-respondent herein is that he has not played any fraud or mischief for receiving the benefits under SROs mentioned above, whereas, the said benefits have been granted by the writ petitioners herein voluntarily, therefore, once the benefit even if granted wrongly, the recovery for the same cannot be effected from the retirees as well as in service employees at the relevant point of time.
06. The Tribunal vide common judgment/order dated 20.06.2024 (impugned herein) has quashed and set aside the impugned order of recovery and the writ petitioners herein are directed not to recover any amount from the salary or pensionary benefits of the applicant. It was further directed to the writ petitioners herein that the amount recovered from the salary/pensionary benefits to the applicant shall be refunded preferably within two months from the date of receipt of a certified copy of that order.
07. Aggrieved of the order passed by the Tribunal, the present writ petition has been filed.
08. Heard learned counsel for the petitioners and perused the impugned judgment.
09. Admittedly, the benefits under SRO 59, SRO 87 and SRO 149 (supra) were granted voluntarily by the writ-petitioners in favour of the applicant-respondent herein and subsequently, the said benefits have been withdrawn and initiated recovery from the salary of the respondent herein.
It is not the case of the writpetitioners that the benefits have been received by the applicant-respondent herein by way of fraud or misrepresentation. The law in this regard is well settled in various judgments passed by the Hon’ble Supreme Court as well as this Court.
10. The learned Tribunal has also relied upon the judgment passed by the Hon’ble Supreme Court in 2022 Live Law (SC) 438 titled – “Thomas Daniel Vs State of Kerala & Ors.”. The relevant paragraphs 13, 14 and 15 of the said judgment are reproduced as under:- “13. In State of Punjab and Others v. Rafiq Masih (White Washer) and Others 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 employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right 2025:JKLHC-JMU:843-DB 5 WP(C) No. 719/2025 would outbalance, and therefore eclipse, the right of the employer to recover. …………. 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 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.”
14. Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999.
In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General.
15. Having regard to the above, we are of the view that an attempt to recover the said increments after passage of ten years of his retirement is unjustified.”
11. Therefore, having regard to the settled legal position, the judgment impugned passed by the learned Tribunal is well reasoned, accordingly, we are not inclined to interfere with the impugned judgment/order passed by the Tribunal.
12. In view of the above, the present writ-petition is dismissed along with connected application(s).
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