No Misrepresentation By Employee, Period In Excess Of Five Years: Rajasthan HC Orders Refund Of Excess Payment Recovery Made By Employer
The Rajasthan High Court has reiterated that a higher salary paid due to a mistake of the employer cannot be legally recovered when there is no misrepresentation and/or concealment of any kind on part of the employee and when the when the excess payment has been made for a period in excess of five years.
The Court was dealing with a writ petition filed by an employee seeking quashing of a recovery order issued by the Finance Department, Government of Rajasthan. The Court relied upon the law laid down by the Supreme Court in in the matter of State of Punjab & Ors. v. Rafiq Masih (White Washer) & Ors.
A single-judge bench of Justice Vinit Kumar Mathur observed, "......it thus clearly emerges that there is no misrepresentation and/or concealment of any kind by overt or covert act or omission on the part of the petitioner, which led to according him higher pay than the one he deserved. The mistake was concededly on the part of the department and the petitioner did not mislead the department or contribute in any manner to accord himself higher salary than he ought to have been paid.......the case of petitioner is squarely covered by parameters as enumerated in case of Rafiq Masih (supra)......."
The petitioner was represented by Advocate Dinesh Choudhary.
The petitioner-herein was initially appointed on the post of Computer-cum-Data Entry Operator on temporary basis by MLV Textile and Engineering College. Subsequently, his services were confirmed in 2009. On account of the nonavailability of any promotional post, petitioners were given benefit of ACP after completion of 9 years’ service. Thereafter, posts on which the petitioner was working, were bifurcated. According to said bifurcation, petitioner was eligible for pay-scale of 5000-150-8000. However, petitioner who was working on a higher grade pay, on account of bifurcation of said posts, his fixation was made on a lower grade pay. Pursuant to that, vide impugned order, the Joint Secretary Education Department directed the Principal MLV Textile and Engineering College to initiate recovery against the petitioner.
In a reply filed, the respondent stated that excess amount in salary paid to the petitioner was under bonafide error and it is settled position of law that an excess amount which has been paid to employee to which he is not legally entitled can always be recovered.
The court recognized that in the case in hand, there was no misrepresentation and/or concealment of any kind by overt or covert act or omission on the part of the petitioner, which led to according him higher pay than the one he deserved and it was a mistake conceded on the part of the department.
As the petitioner did not mislead the department or contribute in any manner to accord himself higher salary than he ought to have been paid, the court was of the view that the case in hand is squarely covered by State of Punjab & Ors. v. Rafiq Masih (White Washer) & Ors.
In the above case, few situations wherein recoveries by the employers would be impermissible in law were summarized.
"It is not controverted either in the reply or otherwise that the benefit sated to have been erroneously conferred to the petitioner lasted for as long as 30 years. Being so, the period is clearly more than 5 years, as mentioned in sub-clause (ii) of para 18 of the judgment ibid. The mistake, if any, was concededly on the part of the department. In view the ratio laid down in Rafiq Masih (supra), the impugned order is not sustainable," the court observed.
Accordingly, the impugned order was set aside and the writ petition was allowed, ordering that the recovery made from the petitioner shall be refunded back to alongwith interest as per applicable Service Rules
Cause Title: Purna Shanker Sharma vs. The Secretary, Finance Department (Budget), Government Of Rajasthan, Jaipur (Rajasthan)
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