HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU LPA No.53/2025 in SWP No.1842/2018 CM Nos.1643/2025 & 1644/2025 1. UT of J&K through Commissioner/Secretary to Govt. Department of Finance, Civil Secretariat, Jammu. 2. The Accountant General, State of J&K. 3. The Commissioner, Jammu Municipal Corporation, Town Hall, Jammu. 4. The Joint Commissioner (Accounts), Jammu Municipal Corporation, Town Hall, Jammu. 5. The Deputy Director, Local Fund Audit & Pensions, Jammu. ….Petitioner(s)/Appellant(s) Through :- Mrs. Monika Kohli, Sr. AAG V/s Jai Pal Raina S/O Sh. Dhani Ram R/O H. No. 39, Lane No.1, Ekta Vihar, Gangyal, Jammu. ….Respondent(s) Through :- Mr. Anuj Dewan Raina, Advocate. CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE MA CHOWDHARY, JUDGE ORDER 24.03.2025 CM No. 1643/2025 This is an application seeking condonation of delay of 26 days in filing the appeal. For the reasons stated in the application coupled with submissions urged at the Bar, the delay of 26 days in filing the appeal is condoned. CM No. 1643/2025 is allowed. Sr. No.02 2 LPA No.53/2025 LPA No.53/2025 This intra-court appeal by the appellant is directed against the judgment dated 18.11.2024 passed by learned Single Judge of this Court [“Writ Court”] in SWP No.1842/2018 titled “Jai Pal Raina Vs State of J&K and Ors.” whereby the Writ Court has allowed the writ petition filed by the respondent herein and has quashed the order of recovery dated 19.05.2018 for an amount of Rs.4,95,000/- on account of excess amount paid to the respondent pursuant to erroneous fixation of his salary in terms of SRO 59 of 1990. 02. Briefly stated the facts leading to the filing of this appeal are that the respondent was serving as Work Supervisor in Jammu Municipal Corporation (JMC) and retired on superannuation in the year 2017. It was only after his retirement when his pensionary benefits were being worked out, the appellants herein found that on account of wrong fixation of his salary, the respondent had drawn an excess amount of Rs.4,95,000/-. Accordingly vide Communication No. LFAP/J/2018-19/422 dated 19.05.2018, the respondent was conveyed that recovery of the aforesaid amount has been withheld from the pensionary benefits of the petitioner, and pensionary benefits have been calculated by taking the last pay as Rs. 20,630/- instead of the actual pay of Rs. 22,380/-. 03. Feeling aggrieved, the respondent challenged the aforesaid Communication on the ground that fixation of his salary whether in terms of SRO 14 of 1998 or SRO 59 of 1990 was the prerogative of the appellant- employee. It was submitted that pursuant to re-fixation of his salary in terms 3 LPA No.53/2025 of aforesaid two SROs, he was paid the higher salary in the higher pay scale, which he continued to receive from the year 1992 till his retirement. 04. Placing reliance upon the judgments of the Supreme Court in cases of „Sahib Ram v. State of Haryana and others‟, 1995 Supp (1) SCC 18 and Syed Abdul Qadir and others v. State of Bihar and others, 2009 (3) SCC 475, it was submitted that such recoveries on account of refixation of salary of the employee without any connivance with the employer are not recoverable after the retirement of such employee. The Writ Court having regard to the facts of the case and in the light of law laid down by the Supreme Court in the aforesaid two judgments, as also in light of the judgment of „Thomas Daniel Vs. State of Kerala and Ors‟ [2022 Live Law (SC) 438] allowed the writ petition and quashed the impugned order of recovery issued by the appellant against the respondent vide judgment dated 18.11.2024. It is this judgment of Writ Court which is assailed before us by the appellants. 05. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the judgment passed by the Writ Court is perfectly in consonance with law and, therefore, does not call for any interference. Admittedly, it is not the case of the appellants that re-fixation of salary of the respondent in terms of SRO 14 of 1996 or SRO 59 of 1990 was done with the connivance or at the instance of the respondent. There is no allegation of any fraud or misrepresentation by the respondent. Not only the pay was refixed and the respondent was placed in higher pay scales in the year 1992, he continued to receive the benefits till he retired on superannuation. That being the admitted factual position coupled with the judgments relied upon by the respondent, which find mention in the impugned judgment, the 4 LPA No.53/2025 Writ Court rightly came to the rescue of the respondent. As is concluded by the Hon‟ble Supreme Court in the case of Thomas Daniel (supra) that if the excess amount drawn by an employee upon re-fixation of his salary or otherwise is not on account of any misrepresentation or fraud played by such employee or if a wrong principle of interpretation of law is applied. Such excess amount paid by the employer due to a mistake, is not recoverable after the superannuation of such employee. Para (18) postulates few situations of hardship which may visit an employee when he is served with recovery notice for payment erroneously paid to him. Para reads thus: “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, summaries 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.” 5 LPA No.53/2025 06. Keeping in view the facts and circumstances of the case and also in view of the law laid down by the Supreme Court in the judgments (supra) referred to by the Writ Court in the impugned judgment, we find no merit in this appeal and the same is, accordingly, dismissed. The amount of recovery which was subject matter of impugned order of recovery before the Writ Court shall be released in favour of the respondent forthwith in any case within a period of two months from the date of receipt of a certified copy of this order. Jammu: 24.03.2025 Raj Kumar ( (MA Chowdhary) Judge ) (Tashi Rabstan) Chief Justice