Allahabad High Court
Bhagwati Prasad Giri vs State Of U.P. Thru. Addl. Chief Secy. ... on 2 July, 2024
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:44931 Court No. - 4 Case :- WRIT - A No. - 3879 of 2024 Petitioner :- Bhagwati Prasad Giri Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home Lko. And 2 Others Counsel for Petitioner :- Rakesh Kumar Singh Counsel for Respondent :- C.S.C. Hon'ble Rajesh Singh Chauhan,J.
1. Heard Sri Rakesh Kumar Singh, learned counsel for the petitioner and Sri Tushar Verma, learned Addl. Chief Standing Counsel for the State-opposite parties.
2. By means of this petition, the petitioner has prayed following main reliefs:-
"(i) A writ, order or direction in the nature of Certiorari thereby quashing the impugned Order dated 03/4/2024 passed by the opp. party no. 3 as contained in Annexure No. 1 to this Writ Petition, with all consequential service as well as post retiral benefits.
(ii) A writ, order or direction in the nature of Mandamus thereby commanding and directing the opposite party nos. 2 and 3 to pay the post retiral dues of the petitioner such as General Provident Fund, Group Insurance Scheme, 10% Gratuity, 10% Leave Encashment immediately which have been withheld on the basis of the impugned Order dated 03/4/2024 passed by the opp. party no. 3 as contained in Annexure No. 1 to this Writ Petition and also to pay interest at the current market rate upon the delayed payment."
3. On the first date of admission i.e. 17.05.2024, this Court has passed the following order:-
"1. Heard.
2. The contention of learned counsel for the petitioner is that the petitioner retired from service from a Class III post on 30.09.2023. Subsequent thereto, the order impugned dated 03.04.2024, a copy of which is Annexure-1 to the petition, has been passed whereby the respondents, after revising and lowering the pay of the petitioner, have directed for recovery of rupees ten lakhs and odd from the petitioner.
3. A specific averment has been made by learned counsel for the petitioner in paragraph 16 of the petition that prior to fixation of salary in July, 2017, the petitioner had not given any undertaking authorising the respondents to make recovery of any excess payment and further keeping in view the law laid down by the Apex Court in the case of State of Punjab and others vs. Rafiq Masih (White Washer) and others-(2015) 4 SCC 334, no recovery is permissible under law from Class III & IV employees.
4. Learned Standing Counsel prays for and is granted a week's time to seek instructions in the matter.
5. As the matter pertains to a retired employee, list this case in the week commencing 27.05.2024 as fresh."
4. Today, Sri Tushar Verma has submitted, on the basis of instructions, that the petitioner had not given any undertaking at the time of making payment (allegedly excess payment) but such undertaking has been given after his retirement. He has further submitted that no recovery has been executed from the petitioner till date pursuant to the impugned order of recovery dated 03.04.2024.
5. At this stage, learned counsel for the petitioner has referred para-18 of the judgment of the Apex Court in re; State of Punjab and others v. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334, wherein the Apex Court has held 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 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."
6. Learned counsel for the petitioner has submitted that the petitioner retired from the post of Head Constable Driver, which comes within the purview of Class-III post. Therefore, in view of the dictum of the Apex Court in re; Rafiq Masih (supra), such recovery is not permissible from the petitioner in any manner after his retirement. He has further submitted that since the specific instructions have come to the effect that no undertaking was given by the petitioner at the time of making excess payment, therefore, the subsequent judgment of the Apex Court in re; High Court of Punjab & Haryana and others Vs. Jagdev Singh, (2016) 14 SCC 267, would not be applicable in the present case.
7. Sri Tushar Verma, learned Addl. Chief Standing Counsel, has submitted that the post retiral benefits so demanded by the petitioner would be paid to him as per correct fixation of his salary and so far as the recovery is concerned, any appropriate order may be passed by this Court.
8. Having heard learned counsel for the parties and having perused the material available on record, since this is an admitted position that at the time of making excess payment, if any, no undertaking was sought from the petitioner nor the petitioner has given any undertaking to that effect, therefore, the petitioner, who retired from Class-III post, may not be compelled to make payment of alleged excess payment and that excess amount may not be recovered from the petitioner in any manner whatsoever in the light of the dictum of the Apex Court in re; Rafiq Masih (supra). Therefore, to that extent the impugned order dated 03.04.2024 (Annexure No.1) passed by the Superintendent of Police, Kheri and consequential recovery orders are hereby set aside/ quashed.
9. A writ in the nature of mandamus is issued commanding opposite parties no.2 & 3 to make all post retiral dues of the petitioner such as General Provident Fund, Group Insurance Scheme, Gratuity & Leave Encashment ignoring the impugned order dated 03.04.2024 strictly in accordance with law, with expedition, preferably within a period of eight weeks from the date of production of certified copy of this order.
10. It is needless to say that if the salary etc of the petitioner is re-fixed in terms of the decision so taken by the competent authority that the petitioner has been paid excess amount, such re-fixation of salary shall be done after affording ample opportunity of hearing to the petitioner but in any case, the appropriate decision shall be taken forthwith by the competent authority so that the petitioner could get his pension etc. strictly in accordance with law.
11. Accordingly, the writ petition is allowed.
12. No order as to costs.
[Rajesh Singh Chauhan,J.] Order Date :- 2.7.2024 /RBS/-