- (1.) The special appeal has arisen from a judgment and order of the learned single Judge dated 14 January, 2016. The first respondent was appointed on 1 March, 1960 with the department of consolidation and joined the police department in the State in 1971 from where he retired from the post of Sub-Inspector in 1995.
(2.) On 23/29 December, 2006, an order was served on the first respondent informing him that an amount of Rs.71621/- was recoverable from him on the ground of excess payment from his GPF account. In pursuance thereof, an order was passed on 2 February, 2007 for the recovery of the same. The learned single Judge has set aside the recovery action, following the law laid down by the Supreme Court in State of Punjab v. Rafiq Masih (White Washer), 2015 AIR(SC) 696. The principle of law which has been formulated in the decision in Rafiq Masih is as follows: "12. 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 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 an extent, as would far outweigh the equitable balance of the employer's right to recover."
(3.) The submission which has been urged on behalf of the appellants, Office of the Accountant General (Accounts and Entitlement) 1, U.P.(AGUP) in appeal is that under Rule 11(6) of the General Provident Fund (U.P.) 1985, in case a subscriber is found to have drawn from the Fund an amount in excess of the amount standing to his credit on the date of the withdrawal, the overdrawn amount shall be repaid by him with interest thereon, or in default, would be recovered by deduction from the emoluments or other dues of the subscriber. In case the subscriber is still in service, the amount shall be repaid by him or recovered from him in one lump sum.;