Surendra Kumar Srivastava vs U.P.Avas Evam Vikas Parishad ...
2017 Latest Caselaw 8199 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved Judgment
 
Court No. - 2
 
Case :- SERVICE BENCH No. - 26252 of 2016
 
Petitioner :- Surendra Kumar Srivastava
 
Respondent :- U.P.Avas Evam Vikas Parishad Thru.Chairman & 5 Ors.
 
Counsel for Petitioner :- Virendra Kumar Dubey
 
Counsel for Respondent :- Mahesh Chandra
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Rajnish Kumar,J.

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard learned counsel for the parties.

2. The petitioner has approached to this Court challenging the order dated 19.01.2016 passed by the opposite party no.2 in compliance of the order dated 29.08.2016 passed by this Court in writ petition no. 16329 (S/B) of 2016. The petitioner has further prayed for a direction and commanding to the opposite parties to refund the recovered amount of Rs. 1,27,162/- with interest to the petitioner within some reasonable time and compute the retiral dues including pension etc. on the basis of last pay drawn by the petitioner within 34 months prior to the date of his retirement as per Government Order dated 16.01.2007.

3. The facts in brief for adjudication of the present controversy are as under.

4. The petitioner was initially duly selected and appointed as Junior Engineer, U.P. Avas Evam Vikas Parishad on 21.06.1977 on regular basis. After completing requisite regular satisfactory services the petitioner was granted first promotional pay scale in the year 1993 and the second promotional pay scale in the year 2002. On the basis of work performance and seniority of the petitioner, he was promoted on the post of Assistant Engineer on regular basis on 31.12.2015. Prior to his retirement the petitioner completed all the formalities for getting the post retiral dues. The required ''no dues certificates' were issued by the concerned departments and were submitted to the competent authority for payment of retiral dues. After receipt of the no dues certificate, the opposite parties made payment of Rs. 10,00,000/- towards gratuity and also transferred amount of G.P.F. Rs. 3,20,352/- in the petitioner's Bank account.

5. Thereafter, when the payment of pension either provisional or final was not made to the petitioner after expiry of sufficient time, the petitioner moved representation dated 08.02.2016 before Housing Commissioner, U.P. Avas Evam Vikas Parishad for making payment of the pension and reminder dated 17.02.2016. The petitioner received a copy of the letter dated 09.02.2016 written by Senior Finance & Accounts Officer to the Executive Engineer, Construction Division-2, Indira Nagar, Lucknow regarding pension fixation of the petitioner, but nothing effective has been done regarding pension fixation of petitioner, since there was nothing adverse against the petitioner, the payment of gratuity, encashment and amount of G.P.F. had already been made to the petitioner.

6. Having left with no other alternative the petitioner approached to this Court by means of filing writ petition no. 4269 (S/B) of 2016; Surednra Kumar Srivastava Vs. U.P. Avas Evam Vikas Parishad & Others which was finally disposed of vide order dated 01.03.2016 with a direction to the opposite parties to dispose of the representation dated 08.02.2016 and reminder dated 17.02.2016 within a period of 3 months from the date of communication of the order.

7. In the meantime, the petitioner had received a copy of Pension Payment Order dated 13.05.2016 issued by the Finance Controller to the Drawing and Disbursing Officer, Head Quarter, Lucknow containing arbitrary and discriminatory recovery of Rs. 1,27,262/- from the arrears of pension of the petitioner. The petitioner moved a representation dated 13.05.2016 before the Finance Controller with a request to issue the rectified Pension Payment Order by removing the note of alleged recovery in terms of the order of the opposite party no.2 dated 10.05.2016. The petitioner has drawn attention of the opposite party no.2 towards his order dated 10.05.2016 vide representation dated 16.05.2016.

8. Thereafter, in response to the representations preferred under Right to Information Act, the Public Information Officer/Executive Engineer vide letter dated 27.05.2016 informed to the petitioner that an amount of Rs. 1,27,262/- is due against salary head. The petitioner was also provided the copy of letter dated 09.02.2016 and 02.04.2016. By Office Order dated 02.04.2016 the pay fixation made earlier vide letter dated 21.09.2012 of the petitioner has been revised behind the back of the petitioner and much after the retirement of the petitioner in violation of Government Order dated 16.01.2007.

9. The petitioner again approached to this Court by means of writ petition no. 14503 (S/B) of 2016 inter-alia challenging the Pension Payment Order dated 13.05.2016 containing remark of recovery of Rs. 1,27,162/- which was dismissed as withdrawn with liberty to file fresh better writ petition vide order dated 22.06.2016. As per the liberty granted by this Court, the petitioner filed writ petition no. 16329 (S/B) of 2016 before this Court which was finally disposed of vide order dated 29.08.2016 giving liberty to the respondents to take a decision in the matter in accordance with law settled by the Apex Court in the case of "Rafiq Masih" within a period of one month from the date of receipt of a copy of the order. In compliance thereof the opposite party no.2 passed the order dated 19.10.2016 which has been challenged in the present writ petition.

10. The opposite parties have filed a counter affidavit stating therein that after promotion of the petitioner on the post of Assistant Engineer (Civil) and after joining on the said post, the Superintending Engineer, III Circle, Lucknow vide its order dated 21.09.2012 granted him benefit of one additional pay increment. After the retirement of petitioner the pension papers of the petitioner were forwarded by the Executive Engineer, Construction Division-2 vide its letter dated 05.01.2016 to the Senior Finance and Accounts Officer for fixation of pension. The pension department vide its letter dated 09.02.2016 pointed out that extension of one pay increment to the petitioner after his promotion to the post of Assistant Engineer (Civil) was not admissible to him as per rules. Accordingly, the order dated 21.09.2012 issued by the Superintending Engineer, III Circle was reviewed and was accordingly amended and the pay of petitioner was revised and accordingly directed to recover the excess amount paid to the petitioner. The said exercise has been completed within five years of wrong pay fixation and on the basis of amended pay fixation, pension payment order dated 13.05.2016 was issued mentioning to recover Rs. 1,27,162/- from the arrears of pension of the petitioner. Since the petitioner was very well aware about the wrong fixation, hence on his request letter dated 11.05.2016 the amount of Rs. 1,26,162/- was recovered. The Finance Controller after scrutinizing the recovery found the same in accordance with the rule. It has also been mentioned in the counter affidavit that the impugned order dated 19.10.2016 has been passed strictly in accordance with law considering the case of the petitioner in the light of judgment and order passed in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) passed by the Hon'ble Apex Court.

11. It is also submitted in the counter affidavit that there are various other cases of similar nature wherein increments and enhancement in pay have wrongly been paid to the concerned employees on a large scale and an enquiry has been set up vide letter dated 10./11.2016 to enquire the financial irregularities committed in the wrongful grant of increments and also against the persons involved in such financial irregularities.

12. Rejoinder affidavit has been filed by the petitioner reiterating to the averments made in the writ petition and relied on the judgment and order dated 18.12.2014 passed in Civil Appeal No. 11527 of 2014; State of Punjab and others Vs. Rafiq Masih (White Washer) [hereinafter referred to as ''case of Rafiq Masih'] and stating therein that in view of the aforesaid judgments no recovery can be made from the retrial dues of the petitioner.

13. The learned counsel for the petitioner submitted that the pay fixation made earlier after promotion of the petitioner on the post of Assistant Engineer (Civil) vide order dated 21.09.2012 has been revised and corrected vide order dated 02.04.2016 by the opposite parties behind back of the petitioner without affording any opportunity to him and that too after his retirement. Accordingly, the same could not have been done by the opposite parties. The order dated 02.04.2016 by which the earlier pay fixation order dated 21.09.2012 has been corrected has not been challenged in the present writ petition and no infirmity has been pointed out in the revised pay fixation order dated 02.04.2016 and hence, we need not to go in the validity of the same and the same seems to be correct.

14. Learned counsel for the petitioner further submitted that the order of pay fixation of petitioner dated 21.09.2012 by which the pay of petitioner was fixed after his promotion on the post of Assistant Engineer (Civil) has been revised and corrected vide order dated 02.04.2016, that too after retirement of the petitioner, the recovery on account of the said correction could not have been made from the retiral dues of the petitioner after such a long time. It has further been submitted that the order has been corrected behind the back of the petitioner without affording any opportunity to the petitioner and accordingly, the recovery has been made from the pension of petitioner without informing him and on the pretext that the petitioner has given an undertaking on 11.05.2016 that the same may be recovered from the arrears of pension, hence, the same is illegal and the petitioner is entitled for refund of the said amount in view of the judgment and order by the Apex Court in case of Rafiq Masih (supra) as the recovery has been made after his retirement which is impermissible in law in view of judgment of Hon'ble Apex Court.

15. Learned counsel for opposite parties vehemently opposed the submission of the learned counsel for petitioner and submitted that the petitioner has given an undertaking on 11.05.2016 that the recovery of the excess amount paid be made from the retiral dues of arrears of payment of pension as he was very well aware of the wrong fixation, as such, now he is debarred from claiming the same. It has further been submitted that while scrutinizing the matter of fixation of pension of the petitioner ambiguities were detected in not only one case but in several cases and accordingly the Housing Commissioner vide its order dated 10.11.2016 has instituted an inquiry by appointing the Finance Controller, Avas Vikas Parishad as Inquiry officer to enquire about the irregularities committed in pay fixation as well as the connivance of the persons involved therein. As such, it is not that action has been taken in such matters against the petitioner only, but the pay fixation orders of the other similarly situated persons are also being scrutinized.

16. We have considered the submissions of the parties and gone through the record.

17. The core question for determination involved in the present writ petition is that whether the payment made on account of wrong fixation of pay can be recovered from arrears of pension of the petitioner or not, that too after his retirement from service and whether the order dated 19.10.2016 impugned in the present writ petition has correctly been passed considering the judgment of the Hon'ble Apex Court in case of Rafiq Masih (supra).

18. On account of promotion of the petitioner on the post of Assistant Engineer (Civil) the salary of the petitioner was fixed by Superintending Engineer on 21.09.2012 granting him benefit of one additional increment which has been found to be against the law after the retirement of the petitioner and accordingly, the same has been corrected and revised by order dated 02.04.2016 passed by Superintending Engineer and on account of the revision of pay, the recovery of the excess amount paid to the petitioner to the tune of Rs. 1,27,162/- has been recovered from the arrears of pension of petitioner. Relying on the paragraphs 11, 12 and 13 of the judgment of the Apex Court in case of Rafiq Masih (supra), the opposite party no.2 has held that since the order of fixation has been corrected within 5 years of its fixation and accordingly, the recovery to the tune of Rs. 1,27,162/- has righly been made as per the request of petitioner dated 11.05.2016.

19. Hon'ble Apex Court in the judgment and order dated 18.12.2014 passed in the case of Rafiq Masih after considering the matter in detail has been pleased to observe in para 10 that this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligation of the State. The para 10 of the said judgment, on reproduction, reads as under:

10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India."

20. The Hon'ble Apex court after considering various judgments of the Apex Court in regard to recovery of the excess amount paid to the employee held that recovery of excess payments made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer with the following emphasis:

"Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case (supra), that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation."

After detailing the issue in detail the Hon'ble Apex Court summarizes the few situations wherein recovery by the employer were emphazied in para-12 of the judgment, which is reproduced:

"12. 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 herein above, 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."

21. The above situations described in paragraph 12 of the judgment of the Hon'ble Apex court are binding as they have been issued under Article 142 of the Constitution of India and in view thereof the recovery from retired employees or employees who are due to retire within one year, order of recovery is impermissible in law and accordingly, the same cannot be made. While considering the same the opposite party no.2 has only considered the situation no. 3 disclosed in para-12 of the aforesaid judgment which shows that the 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 and accordingly, came to conclusion that since the pay fixation order has been corrected within five years of passing of the same, hence the recovery has been sought to be justified on this count. But, the opposite party no.2 failed to consider the judgment of the Hon'ble Apex Court in the light of position in respect of a retired employee, or employees who are due to retire within one year, from whom the recovery has to be made after his retirement, while the present case is of a retired employee. A retired employee, who has served the department for a long with sincerity and devotion, also deserves to be dealt with sympathetically.

22. In view of the above, we are of the considered opinion that the recovery of Rs. 1,27,162/- made from the arrears of pension of petitioner has wrongly been made as it is impermissible under law as held by the Hon'ble Apex Court in case of Rafiq Masih (supra).

23. Accordingly, the writ petition is partly allowed and the impugned order dated 19.10.2016 passed by the opposite party no.2, contained in Annexure No.1 to the writ petition, is hereby quashed and the opposite parties are directed to refund the recovered amount of Rs. 1,27,162/- to the petitioner within a period of one month from the date of receipt of a certified copy of this order.

24. No order as to costs.

(Rajnish Kumar, J.) (Dr. Devendra Kumar Arora, J.)

Order Date :- 21.12.2017

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