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 Sr. No. 06 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 CORAM: HON’BLE THE CHIEF JUSTICE 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Engineer issued a circular directing verification of pay scales and benefits granted to the respondents herein under repealed statutory rules citing that the respondents were incorrectly granted benefits under aforesaid SROs and the show cause notices were issued to the respondents on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. 401/2025 by 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. 401/2025 a 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