HC Kerala (2021.05.25) The Assistant General Manager State Bank Of India & Anr. Vs. S.Saradamani [OP (CAT) NO.110 OF 2020]
Excerpts of the Order;
# 26. We now turn to the question whether the original applicant is entitled to resist recovery of the excess amount allegedly paid to her by mistake for the period prior to the span of three years from the date of discovery of the mistake, relying on the principles declared by the Apex Court in Rafiq Masih (supra).
# 27. The learned counsel for the original applicant contended that the principles laid down in Rafiq Masih (supra) are squarely applicable to the facts of this case. Per contra, the learned counsel for the petitioners contended that the original applicant is not entitled to the benefit of Rafiq Masih (supra) in view of the subsequent decision of the Apex Court in Jagdev Singh's case (supra). The learned counsel for the original applicant pointed out that in Jagdev Singh (supra), the Apex Court did not hold that the judgment in Rafiq Masih (supra) was wrong and had only carved out a distinction in cases coming out of the second criterion of employees noted in paragraph 18 of the judgment in Rafiq Masih (supra).
28. In State of Punjab v. Rafiq Masih (White Washer) (supra), in paragraph 18, the Apex Court held as follows :
“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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class- IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from 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 extent, as would far outweigh the equitable balance of the employer's right to recover.”
29. In the subsequent decision in Jagdev Singh (supra), in paragraph 9, the Apex Court held as follows :
“9. The submission of the respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the State. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the respondent was clearly on notice of the fact that a future refixation or revision may warrant an adjustment of the excess payment, if any, made.”
# 30. The effect of the judgment in Jagdev Singh (supra) on the judgment in Rafiq Masih (supra) was considered by the Division Bench of this Court in State of Kerala and others v. Vinod Kumar C.R. [2020 (4) KLT 230] and State of Kerala and others v. Abraham P.Joseph [2021 (2) KLT 288] and held that the Apex Court in Jagdev Singh (supra) has not interfered with the directions contained in paragraph 18 of the judgment in Rafiq Masih (supra) regarding Clauses (i), (iii), (iv) and (v).
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