D.S. Mahra, Member (J)
1. The applicant was working as Incharge Education Officer in the School Education Department of Jammu and Kashmir. He was appointed on
deputation in J&K Board of School Education as Incharge Joint Secretary in 2012 and was sanctioned charge allowance for a specific period.
Subsequently, the applicant was again appointed as Incharge Secretary for a period of two years on 19.03.2015. The term of the applicant came to an
end on 18.03.2017. Subsequently, the sanction of charge allowance was withdrawn on 07.02.2017 by the respondents on the ground that the applicant
was asked to perform the duties on a higher post since he was already holding the post of Chief Education Officer on Incharge basis. Therefore, the
applicant was not entitled for a further charge allowance. The applicant challenged the order dated 07.02.2017 before the Hon’ble High Court in
SWP No. 238 of 2017 which was allowed by the Hon’ble High Court on 26.07.2024.
2. In the meantime, the applicant attained superannuation on 31.03.2019. Subsequently, the respondents issued an order dated 09.06.2020 by which the
respondents ordered for recovery of the excess amount paid to the applicant during his tenure as Incharge Joint Secretary. The applicant has
impugned the said recovery order dated 09.06.2020 by which the recovery of Rs.4,18,000/- has been ordered by the respondents.
3. Learned counsel for the applicant submits that since the order of charge allowance has been held to be valid by the Hon’ble High Court and
order of withdrawal of the charge allowance has been set-aside, the respondents cannot recover the amount paid to the applicant during his tenure as
Incharge Joint Secretary in the respondent department. The learned counsel further submits that the charge allowance has been paid by the
respondents after issuing the order to that effect. The respondents cannot recover the said amount after superannuation of the applicant since the said
amount was not received by the applicant by fraud or mis-representation.
4. On the other hand, the learned counsel for the respondents Mr. M.I.Dar fairly submitted that the charge allowance has been paid to the applicant
erroneously. He further submitted that the recovery of paid charge allowance to the applicant was necessary and inevitable in view of the fact that the
applicant was not entitled to charge allowance and was paid wrongly.
5. Heard learned counsel appearing for both the sides. As per record available the applicant was paid as Incharge Joint Secretary for two terms in
2012 and subsequently in 2015 to 2017 for two years. He was duly sanctioned the charge allowance as applicable to the post of Joint Secretary, J&K
Board of School Education. The withdrawal of charge allowance vide order dated 07.02.2017 has been quashed by the Hon’ble High Court vide
order dated 26.07.2024 as follows:-
“14. In terms of Article 87(b) of the CSR, the petitioner was entitled to charge allowance at the rate of the difference between the pay
which he was drawing in respect of the post held by him substantively and the pay attached to the post of Joint Secrertary of JKBOSE.
Therefore, order dated 15.05.2015 (supra) issued by the JKBOSE is absolutely in tune with the provisions contained in Article 87(b) of the
CSR. The respondents cannot take refuge under clause (5) of Order No. 585-B of 2009 dated 13.p08.2009 to deny benefit of charge
allowance at a higher rate to the petitioner. Clause (5) of order dated 13.08.2009 (supra) only provides a method of fixation of pay scales
of the deputationists. It does not provide that a deputationist working against a higher post is not to be paid the charge allowance. The
grant of charge allowance has to be governed by the provisions contained in Article 87(b) of the CSR and not be order dated 13.08.2009
(supra). Thus, the stand taken by the respondents in denying the charge allowance to be petitioner at higher rates is not sustainable in law.
Accordingly, impugned order dated 07.02.2017 is not sustainable in law and, as such, the same deserves to be set aside.
15. For the foregoing reasons, the petition is allowed and impugned order dated 07.02.2017 is quashed. The respondents are restrained
from effecting any recovery from the petitioner on account of pay of charge allowance to him.â€
6. Subsequently, the respondents issued the recovery order on 09.06.2020 i.e. after the applicant superannuated on 31.03.2019. The law on the point
of recovery is crystal clear and settled and no longer res integra. The Hon’ble Supreme Court in the case of State of Punjab vs. Rafiq
Masih 2015(4) SCC 334 has held that recovery cannot be made when the payment of excess amount is due to bonafide mistake and does not
involve fraud or mis-representation. The Hon’ble Supreme Court has held as follows:-
“7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking
recovery of monetary benefits wrongly extended to the employees, can only be interfered with, in cases where such recovery would result in
a hardship of a nature, which would far outweigh, the equitable balance of the employer’s right to recover In other words, interference
would be called for, only in such cases where, it would in iniquitous to recover the payment made. In order to ascertain the parameters of
the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such
recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, “for doing
complete justice in any cause†would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly,
the interference at the hands of this Court.â€
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“10. In view of the aforesaid constitutional mandate, equity and good conscience in the matter of livelihood of the people of this country
has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, as long as
it is not rendered iniquitous to the extent that the action of recovery would be more unfair, more wrongful, more improver and more
unwarranted, than the corresponding right of the employer, to recovery the amount. Or in other words, till such time as the recovery would
have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in
exercise of the power vested in this court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an
action of recovery (of an excess amount paid to the employee) which would breach the obligations of the State, to citizens of this country,
and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.â€
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“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.â€
7. The Hon’ble Supreme Court in a recent judgment dated 22.05.2022 passed in Civil Appeal 7115 of 2010 in the matter of Thomas
Daniel vs. State of Kerala & Ors. [2022 Live Law (SC) 438] has also dealt with the same issue and has held that the excess payment, if not paid
on account of any mis-representation or fraud by the employee, or if such excess payment was made by the employer by applying a wrong principle
for calculating the pay/allowance or on the basis of particular interpretation of rule/order, which is subsequently found to be erroneous, such excess
payment of emoluments or allowances are not recoverable.
8. In view of the above legal position, the impugned order dated 09.06.2020 is quashed and set-aside. The respondents are directed not to recover any
amount from the payable amount to the applicant after his superannuation and process the payment of retiral balance dues.
9. With this, the OA is allowed. No costs.
