Allahabad High Court
Vijay Kumar Sahgal vs U.P. Jal Nigam Lko. Thru. Chairman ... on 11 August, 2021
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 8
Case :- SERVICE SINGLE No. - 8235 of 2021
Petitioner :- Vijay Kumar Sahgal
Respondent :- U.P. Jal Nigam Lko. Thru. Chairman & Ors.
Counsel for Petitioner :- Deepak Singh
Counsel for Respondent :- Rishabh Kapoor
Hon'ble Irshad Ali,J.
1. Heard learned counsel for the petitioner and Sri Rishabh Kapoor, learned counsel for the respondent - U.P. Jal Nigam.
2. Grievance of the petitioner is that he was appointed on the post of Driver in U.P. Jal Nigam on 01.04.1988. On attaining the age of superannuation, he retired from service on 31.01.2019.
3. Learned counsel for the petitioner submitted that during service period, the petitioner was granted enhancement in salary and other benefits for which he was entitled.
4. Vide impugned order dated 17.12.2020, amount of Rs.1,33,975/- has been recovered from gratuity amount of the petitioner, which has been assailed in the present writ petition.
5. Submission of learned counsel for the petitioner is that the petitioner is Class-III employee and after retirement, for no fault of the petitioner, the amount paid in excess to the petitioner has been recovered from his retiral dues. He further submitted that claim of the petitioner is covered under the judgment of Hon'ble Supreme Court rendered in the case of State of Punjab and others Vs. Rafiq Masih (White Washer), reported in [(2015) 4 SCC 334] and U.P. Jal Nigam through Chief Account Officer and others Vs. Smt. Urmila Devi, reported in 2015 (2) UPLBEC 1433.
6. Submission of learned counsel for the respondent - Jal Nigam is that on account of excess payment made in salary to the petitioner, the recovery proceeding has been initiated against him. He further submitted that there is no illegality in the impugned order and the same is just and valid.
7. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
8. To resolve the controversy involved in the present writ petition, relevant portion of the judgment in the case of
State of Punjab and others Vs. Rafiq Masih (White Washer) is being quoted below:
"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, summaries 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."
9. The petitioner was admittedly a class-III employee. Admittedly, the alleged excess payment of salary was made prior to his retirement. He being a class-III employee could not have, in any manner, manipulated the said excess payment of salary nor is it the contention of counsel for the respondent that it was so.
10. In these circumstances, considering the judgment relied upon by the learned counsel for the petitioner, the court finds that the recovery of amount herein cannot be made from the petitioner.
11. In view of the aforesaid, apparent factual and legal position there is no need to call for a counter affidavit. Consequently, the order dated 17.12.2020 contained in Annexure-1 is hereby quashed.
12. The writ petition succeeds and is allowed.
13. The respondents are directed to release the recovered amount of Rs.1,33,975/- to the petitioner within a period of six weeks from the date of production of a certified copy of this order.
14. It is, however, made clear that in case leave encashment of the petitioner of 300 days has not been released to him, the respondents shall consider his claim and shall pass appropriate reasoned and speaking order in this regard within aforesaid period.
Order Date :- 11.8.2021
Adarsh K Singh
