HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 33 Case :- WRIT - A No. - 13376 of 2020 Petitioner :- Ram Gopal Singh Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Atipriya Gautam,Vijay Gautam(Senior Adv.) Counsel for Respondent :- C.S.C. Hon'ble Ashwani Kumar Mishra,J.
Petitioner retired from the post of Head Constable in UP Police on 31.1.2020. After his retirement a recovery order was passed against him which directs the petitioner to deposit a sum of Rs.6,24,329/-. Such amount is alleged to have been paid in excess of petitioner's entitlement. It is stated that there is neither any misrepresentation or fraud on part of the petitioner nor the determination of his salary is otherwise justified.
Learned counsel for the petitioner submits that after petitioner superannuated, no recovery could have been effected, in view of the law laid down by Hon'ble Supreme Court in State of Punjab V. Rafiq Masih (White Washer) reported in 2015 (4) SCC 334.
Reliance is placed upon an order passed by this Court in Writ A No. 4312 of 2014 (Mathura Prasad Vs. State of U.P. and three others), relevant portion whereof is extracted hereinafter:-
"Submission of learned counsel for the petitioner is that the amount is being sought to be recovered after a gap of about 5 years from the date of his retirement on the ground that he was wrongly given second promotional pay scale in the year 2003, whereas he had already been granted higher promotional pay scale on 1.3.2000. It was next submitted that there was no misrepresentation or fraud on the part of the petitioner and in view of the latest pronouncement of Hon'ble Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others 2015 (4) SCC 334 no such recovery can be made from the petitioner. Relevant paragraph 18 of the aforesaid judgment is quoted as under:-
"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 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."
Learned Standing Counsel tried to support the impugned order by drawing attention to various Government orders, however could not dispute the current legal position as laid down by Hon'ble Apex Court in the case Rafiq Masih(supra). He could not point out that there was any misrepresentation or fraud on the part of the petitioner in such wrong fixation of pay.
Therefore, in the light of judgement of Hon'ble Apex Court in the case of Rafiq Masih (supra), impugned order dated 19.3.2013 issued by respondent no.2 (Upper Director Treasury & Pension Kanpur Region, Kanpur) is not sustainable in the eye of law and is hereby quashed. The respondents are restrained from recovering the amount pursuant to the order impugned herein.
With the aforesaid observations, this petition stands allowed."
Learned Standing Counsel does not dispute the fact that the facts of this case are similar to the one occurring in Writ A No. 4312 of 2014. For the reasons recorded therein, order impugned dated 1.10.2020 stands quashed. It would be open for the authority concerned to pass a fresh order in light of the law laid down in Rafiq Mashi (supra) and after considering petitioner's reply, if any, in the matter.
Writ petition stands allowed.
Order Date :- 5.1.2021 Ashok Kr.