Sukkhu Prasad Saroj vs State Of U.P. Thru Secy. And 5 ...
2015 Latest Caselaw 2143 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 1
 
Case :- WRIT - A No. - 32687 of 2014
 
Petitioner :- Sukkhu Prasad Saroj
 
Respondent :- State Of U.P. Thru Secy. And 5 Others
 
Counsel for Petitioner :- Naval Singh
 
Counsel for Respondent :- C.S.C.,Madan Mohan Srivastava
 
Hon'ble Mahesh Chandra Tripathi,J.

Heard learned counsel for the petitioner and learned Standing Counsel for State respondents. Shri Madan Mohan Srivastava appears for respondent no.5.

By means of present writ petition, the petitioner has prayed for following reliefs:-

"A) issue a writ, order, rule or direction in the nature of certiorari for quashing the order dated 17.3.2008 and 30.12.2011 (Annexure no.9 and 12 to the writ petition) passed by the Director Asthaniya Nidhi Lekha Pariksha Vibhag, U.P., Allahabad-respondent no.2 as there are certain adverse remarks against the petitioner, which resulted into financial loss to the petitioner of his post retiral dues, pension and gratuity.

B) issue a writ, order, rule or direction in the nature of mandamus directing the respondent nos.2 to reconsider the arrears in calculation and fixation in pension and gratuity amount and payment of recovery / adjusted amount in arrears of pension and gratuity amount."

The petitioner has challenged the impugned orders for recovering the excess amount paid in salary to the petitioner from 20.11.969 to 30.11.2002 with 18% interest.  The petitioner had rendered 36 years service from 9.11.1966 to 30.11.2002.

It appears from the record that the petitioner was initially appointed as Class-IV employee on 10.11.1966 in Town Area Committee Mugra Badshahpur, Jaunpur as Water Works/ Supervisor.  He had retired on attaining the age of superannuation on 30.11.2002 from the post of Jal-Kal Supervisor from Nagar Panchayat, Bharwari, Distt. Kaushambi and after retirement no benefits has been paid to him.  The petitioner has mentioned the details of unpaid amount, which has not been given to him in para 9 of the writ petition, which is amounting to Rs.6,45,989 on the date of filing of the writ petition. It is averred that the petitioner is fully entitled to get the monthly pension, gratuity, leave encashment, fund, group insurance and other retiral benefits according to the rules and regulations of the State Government. As nothing has happened in the case of the petitioner, he was compelled to file Writ Petition No.57288 of 2007, which was disposed of on 30.04.2009 with following observations:-

"Inasmuch as the dispute relates to the payment of post retirement benefits, a direction is issued to the Executive Officer, Nagar Panchayat, Bharwari, District Kaushambi to examine the claim of the petitioner for payment of post retirement benefits and pass an order in accordance with law within a period of eight weeks from the date a certified copy of this order is produced by the petitioner before the Executive Officer and in case it is found that the petitioner is entitled to payment then the same be paid expeditiously." 

It is submitted that in compliance of the aforesaid order the District Magistrate, Kaushambi sent several letters to Executive Officer, Nagar Palika Bharwari, Kaushambi but no action has been taken by Executive Officer, Nagar Palika Bharwari, Kaushambi-respondent no.5. As the order of the writ court was not complied with, the petitioner filed Contempt Application No.2704 of 2009 in which the Hon'ble Court was pleased to issue notice to the respondents on 6.8.2009.

It is submitted that after receiving the contempt notice the respondent no.5 passed an order dated 17.9.2009 whereby certain amount is sought to be recovered from the petitioner alleging that he has been given excess amount in salary from 21.11.1969 to 30.11.2002. It is submitted that the entire recovery is wholly illegal and and the same has been issued without giving any show cause notice or opportunity to the petitioner.  

Learned counsel for the petitioner submits that at the time of his initial fixation of salary at no point of time he was either instrumental or placed wrong facts before the authority concerned for the wrong fixation and as such at this belated stage once the petitioner has attained the age of superannuation in 2002, the recovery is not justified.  In his entire service no disciplinary or any action has been initiated against the petitioner, therefore, in pursuance of the impugned orders no recovery can be made from the petitioner. 

Learned counsel for the petitioner submits that the order impugned cannot be sustained on the ground that the petitioner was not guilty of furnishing any incorrect information, which had led the concerned competent authority to commit the mistake of making the higher payment to the petitioner. The payment of higher salary to the petitioner was not on account of any misrepresentation made by him nor he had committed any fraud in the fixation and as such the petitioner was innocent in the matter. He further makes submission that in the present matter no excess amount had been paid to the petitioner. The fixation was correct but in the garb of the impugned order the authority had proceeded to recover the excess amount and the same had been passed without affording any opportunity to the petitioner and as such the order impugned is hit by the principle of natural justice.

On the other hand learned counsel for the respondents has vehemently opposed the writ petition on the ground that at the moment when the infirmity and illegality had been noticed, the respondent authorities had immediately taken a note and direction was issued to recover the excess amount, which had been paid to the petitioner due to inadvertence. He had accepted to the extent that in the fixation of the higher salary the petitioner had no involvement or he had made any misrepresentation in the matter. However, he submits that in case of wrong fixation the department has every right to recover the said amount within reasonable time.

Heard rival submissions and perused the record.

Hon'ble the Supreme Court in State of Punjab & ors. v. Rafiq Masih (Civil Appeal No.11527 of 2014) on 18.12.2014 deciding the similarly controversy summarised 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."

In the present matter it is admitted case that the petitioner is Class-III employee and had no role in determination of the pay fixation and as such at this belated stage the department cannot proceed for the recovery of the said amount. It is also apparent that before passing the order of recovery the opportunity of being heard was also not provided to the petitioner, which is also against the principle of natural justice.

Hon'ble the Supreme Court in the case of Union Of India Vs. Mohd. Ramzan Khan (1991) 1 SCC 588, at page 596 has quoted "Prof. Wade has pointed out:

"The concept of natural justice has existed for many centuries and it has crystallized into two rules: that no man should be judge in his own cause; and that no man should suffer without first being given a fair hearing....They (the courts) have been developing and extending the principles of natural justice so as to build up a kind of code of fair administrative procedure, to be obeyed by authorities of all kinds. They have done this once again, by assuming that Parliament always intends powers to be exercised fairly"

Justice Krishna Iyer in Mohinder Singh Gill Vs. The Chief Election Commissioner AIR 1978 SC 851 has traced the root of natural justice in Kautiyla's Arthasastra. He opined as under: "the rule of law has had the stamp of natural justice which makes it social justice.

Hon'ble the Supreme Court in A.K. Kraipak Vs. Union of India (1969) 2 SCC 262 held an unjust decision in an administative enquiry may have more fair reaching effect that a decision in quasi judicial enquiry.  The purpose of the rules of natural justice is to prevent miscarriage of justice. The Court has referred the classic case of State of Orissa Vs. Dr. Binapani Dei AIR 1967 SC 1269; Supreme Court in Binapani Case (Supra) observed that if "there is power, duty to act judicially is implicit in the exercise of such power".

In Swadeshi Cotton Mills Vs. Union of India AIR 1981 SC 818, Justice R.S. Sarkaria held as under:

"Rules of natural justice are not embodied rules. Being means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue of such rules. But there are two fundamental maxims of natural justice vis. (i) audi alteram partem, and (ii) nemo judex in re sua. The audi alterm partem rule has many facets, two of them being (a) notice of the case to be met; and (b) opportunity to explain. This rule cannot be sacrificed at the alter of administrative convenience or celerity. The general principles as distinguished from an absolute rule of uniform application seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Conversely if the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full view or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing, shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative process or frustrate the need for utmost promptitude. In short, this rule of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise."

Recently Hon'ble the Supreme Court in the case of Automotive Tyre Manufacturers Association Vs. Designated Authority (2011) 2 SCC 258 held about the natural justice in following terms:

"It is thus, well settled that unless a statutory provision, either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi judicial. It is equally trite that the concept of natural justice can neither be put in a straitjacket nor is it a general rule of universal application."

The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fairplay in action." As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, I am of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. No doubt, the extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement.

As per the record it is apparent that the respondents claimed that some excess payment towards salary since 20.11.1969 to 30.11.2002 has been made to the petitioner and was liable to be recovered from his pension.  It is admitted situation that till the filing of the present writ petition the respondents have not finalised the pension, gratuity and other retiral benefits and at present the petitioner may have attained the age of 75 years. It has shocked the conscience of the Court that an old senior citizen, who had served the department for long 36 years is being deprived of from his retiral dues for about 13 years for the alleged excess payment for which the department has never issued any show cause notice or conducted any enquiry in the service period of the petitioner.  Certain amount had been directed to be deducted from his retiral benefits without giving any opportunity to him, which is impermissible in law.  

In view of the above and considering the judgement in State of Punjab & Ors. v. Rafiq Masih (Supra), the orders impugned and the subsequent recovery cannot be sustained and are hereby quashed.

A direction is issued to the respondents to calculate the entire pension and retiral dues on the basis of last pay drawn by the petitioner and no deduction can be made by the respondents from his salary, which they claim to be allegedly paid to the petitioner, at this belated stage.  The entire amount will be given to the petitioner within two months from the date of production of certified copy of this order along with 6% interest, failing which the petitioner will be entitled for 12% interest, out of which 6% interest will be recovered from the salary of the erring official, who will be responsible for making delay in such payment.

With these observations, the writ petition is allowed.  

(Mahesh Chandra Tripathi,J.)

Order Date :- 4.9.2015

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