Allahabad High Court
Banwari Lal vs State Of U.P. And 5 Others on 26 August, 2021
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 6
Case :- WRIT - A No. - 5035 of 2021
Petitioner :- Banwari Lal
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Sudhir Kumar (Chandraul)
Counsel for Respondent :- C.S.C.,Vikram Bahadur Singh
Hon'ble Pankaj Bhatia,J.
The present petition has been filed challenging the order dated 17.12.2020, whereby order passed passed for recovery of an amount of Rs. 1,95,978/-, allegedly paid as excess salary to the petitioner for the period 01.07.2009 to 31.03.2020.
It is claimed that the petitioner was employed as Assistant Teacher in a primary school and retired from service after attaining the age of superannuation on 31.03.2020. It is contended that though the petitioner was paid G.P.F. On 20th July, 2020 but the petitioner has not been paid pension and the group insurance scheme benefit also mainly on the ground as contained in the order dated 17.12.2020.
A perusal of the order dated 1.7.12.2020 reveals that when the pension papers of the petitioner were being processed, it was revealed that the date of appointment of the petitioner (equal to one Shanti Devi) was under consideration and it appears that the petitioner was granted benefit of 6th Pay Commission equal to the said Shanti Devi w.e.f. 01.07.2009, which is erroneous, and thus the petitioner was called to deposit a sum of Rs. 1,95,978/-, allegedly received as excess salary, so that the papers of the petitioner for payment of retiral dues can be processed.
The contention of the petitioner is that the recovery of the excess salary, as proposed in the impugned order, is contrary to the mandate of the judgment of Hon'ble Supreme Court in the case of State of Punjab and Others etc. vs. Rafiq Masih (White Washer) etc.. He places reliance on paragraph 12 of the said judgment, which is as under:-
?[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) ?..
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) ?.
(iv)....
(v).......?
He further argues that in a second judgment of the Hon'ble Supreme Court in the case of Sushil Kumar Singhal vs. Pramukh Sachiv Irrigation Department & Others, a Government Order dated 16.01.2007, which is also applicable in the case of the petitioner and after considering the scope of the said Government Order, the Hon'ble Supreme Court recorded as under:-
?7. Upon perusal of the aforestated G.O. and the submission made by the learned counsel appearing for the appellant, it is not in dispute that the appellant had retired on 31st December, 2003 and at the time of his retirement his salary was Rs.11,625/- and on the basis of the said salary his pension had been fixed as Rs.9000/-. Admittedly, if any mistake had been committed in pay fixation, the mistake had been committed in 1986, i.e. much prior to the retirement of the appellant and therefore, by virtue of the aforestated G.O. dated 16th January, 2007, neither any salary paid by mistake to the appellant could have been recovered nor pension of the appellant could have been reduced.
10. For the aforestated reasons, we quash the impugned judgment delivered by the High Court and direct the respondents not to recover any amount of salary which had been paid to the appellant in pursuance of some mistake committed in pay fixation in 1986. The amount of pension shall also not be reduced and the appellant shall be paid pension as fixed earlier at the time of his retirement. It is pertinent to note that the Government had framed such a policy under its G.O. dated 16th January, 2007 and therefore, the respondent authorities could not have taken a different view in the matter of re-fixing pension of the appellant.
11. The submission made on behalf of the learned counsel appearing for the respondent that the appellant would be getting more amount than what he was entitled to cannot be accepted in view of the policy laid down by the Government in G.O. dated 16th January, 2007. If the Government feels that mistakes are committed very often, it would be open to the Government to change its policy but as far as the G.O. dated 16th January, 2007 is in force, the respondent-employer could not have passed any order for recovery of the excess salary paid to the appellant or for reducing pension of the appellant."
In light of the said, learned counsel for the petitioner argues that the petition deserves to be allowed and the order impugned may be set aside.
I have considered the said order, the said order is based upon alleged wrong fixation of salary paid to the petitioner from 01.07.2009 to 31.03.2020, same is on the face of it contrary to the mandate of the Government Order dated 16.01.2007 as well as the judgment of the Hon'ble Supreme Court in the case of State of Punjab Vs. Rafiq Masih (supra).
Accordingly, on both the premises, the writ petition deserves to be allowed. The order dated 17.12.2020 is set aside. A further direction is issued to the respondents to compute the pension payable to the petitioner strictly in terms of the Government Order dated 16.01.2007 and pay the same to the petitioner. The said exercise shall be carried out by the respondents within a period of three months from the date of production of a copy of this order. As the payment of pension to the petitioner has been delayed without any valid justification, the petitioner shall also be entitled to payment of interest from the date of his retirement till the date of actual payment at the rate of 6% per annum within the same time.
The petition stands allowed, accordingly.
Order Date :- 26.8.2021
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