Jammu & Kashmir High Court
Union Territory Of J&K Through … vs Sham Lal S/O Sh. Bodh Raj on 10 March, 2025
Sr. No. 06
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CJ Court
Case: WP(C) No. 401/2025
CM No. 866/2025
1. Union Territory of J&K through Commissioner-
Secretary to Government, Ministry of Jal Shakti,
Public Health Engineering Department, Civil
Secretariat, Jammu/Srinagar
2. Chief Engineer, Jal Shakti (Public Health
Engineering Department), Jammu
3. Executive Engineer, Jal Shakti (Public Health
Engineering Department), Samba
.....Petitioner(s)
Through :- Mrs. Monika Kohli, Sr. AAG.
Versus
1. Sham Lal S/o Sh. Bodh Raj
R/O Village Badyal PO Sanoora, Tehsil Rajpura,
District Samba, UT of J&K.
2. Kishori Lal S/o Sh. Bihari Lal
R/O Village Jatwal, Tehsil Ghagwal,
District Samba, UT of J&K.
3. Ashwani Kumar S/O Sh. Ram Lal
R/O Village Supwal Tehsil Vijaypur,
District Samba, UT of J&K.
4. Joginder Paul S/O Thuru Ram
R/o Village Jatwal Tehsil Ghagwal District Samba.
5. Kabla Singh S/o Kartar Singh
R/o Village Chhan Kahna Tehsil Ghagwal District
Samba.
6. Jagdev Raj S/O Bihari Lal
R/O Village Rai Tehsil Ghagwal District Samba.
7. Rajinder Kumar S/O Des Raj
R/O Village Jarian, Tehsil Rajpura District Samba.
8. Ashanand S/O Sansar Chand
R/o Village Jarian, Tehsil Rajpura District Samba.
9. Garo Devi W/O Waryam Singh
R/O Village Tapyal Tehsil Ghagwal District Samba.
10. Braham Dutt S/O Mansa Ram
2 WP(C) No. 401/2025
R/O Village Muthikhurd Tehsil Ghagwal
District Samba.
11. Kamalkant S/O Bhagat Ram
R/O Village Kararkey Tehsil Ghagwal
District Samba.
12. Ashok Kumar S/O Harbans Lal
R/O Village Balooni Tehsil Ghagwal
District Samba.
13. Uttam Chand S/O Gian Chand
R/O Chakrala Tehsil Rajpura District Samba.
14. Sat Pal S/O Sh. Kirpa Ram
R/O Village Jarain Tehsil Rajpura
District Samba.
.....Respondent(s)
Through :- Mr. A.K Razdan, Advocate
HON'BLE THE CHIEF JUSTICE
CORAM:
HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
ORDER
10.03.2025
01. Notice. Mr. A.K Razdan, learned counsel accepts notice on behalf of the
respondents.
02. The facts of the case are briefly stated as follows:
The respondents-applicants before the Central Administrative
Tribunal, Jammu Bench, Jammu (hereinafter called as, “the Tribunal”)
are Class-„C‟/„D‟ employees of Public Health Engineering Department
and were initially granted benefits under SRO 87 of 1968 and SRO 149
of 1973. The Chief Engineer issued a circular directing verification of
pay scales and benefits granted to the respondents herein under repealed
statutory rules citing that the respondents were incorrectly granted
benefits under aforesaid SROs and the show cause notices were issued to
the respondents on 11.12.2021 seeking explanations for incorrect
implementation of above SROs. The recovery proceedings were initiated
3 WP(C) No. 401/2025by deducting amounts from December, 2021 months‟ salaries of the
respondents. Aggrieved of the action of the petitioners herein for
recovery, the applicants-respondents herein approached the Tribunal by
filing Original Application bearing OA No. 1921/2021 titled “Sham Lal
and others vs. UT of Jammu and Kashmir and others“, 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-IV or Class-„C‟ and „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. The
learned Tribunal vide its judgment/order dated 17.03.2023 held the
recovery proceedings illegal, quashed the show cause notices and also
directed for refund of recovered amounts in favour of the respondents
herein.
03. We have heard learned counsel for the parties, considered their
submissions and perused the record.
04. It is admitted by the writ petitioners that the grant of benefits of higher
pay scale has wrongly been granted in favour of the respondents herein
and after realizing they initiated the process of recovery from them.
05. The case of the respondents herein is that they have 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,
4 WP(C) No. 401/2025
the recovery for the same cannot be effected from the retirees as well as
in service employees at the relevant point of time.
06. Aggrieved of the order/judgment impugned dated 17.03.2023 passed in
OA No.1921/2021 by the learned Tribunal, the present writ petition has
been filed.
07. Admittedly, the benefits under SRO 87 and SRO 149 (supra) were
granted voluntarily by the writ-petitioners in favour of the applicants-
respondents herein and subsequently, the said benefits have been
withdrawn and recovery proceedings initiated from the salary of the
respondents herein. It is not the case of the writ-petitioners that the
benefits have been received by the applicants-respondents 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.
08. 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 & others“. 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
5 WP(C) No. 401/2025a 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 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.
6 WP(C) No. 401/2025
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.”
09. 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 into the impugned
judgment/order passed by the Tribunal.
10. In view of the above, the present writ-petition is dismissed along
with connected application.
(M A CHOWDHARY) (TASHI RABSTAN)
JUDGE CHIEF JUSTICE
Jammu:
10.03.2025
Surinder
Whether the order is speaking?: Yes/No
Whether the order is reportable?: Yes/No
Surinder Kumar
2025.03.13 10:10
I attest to the accuracy and
integrity of this document
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