Allahabad High Court
Saif Ahmad vs State Of U.P. And 5 Others on 19 January, 2021
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- WRIT - A No. - 13497 of 2017
Petitioner :- Saif Ahmad
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Meraj Ahmad Khan,Ashok Khare,Indra Jit Singh
Counsel for Respondent :- C.S.C.,Ayank Mishra,Kapil Dev Singh Rathore,Narendra Kumar Tiwari
Hon'ble Ashwani Kumar Mishra,J.
Petitioner retired from the employment of respondent Power Corporation on 30.09.2014 from the post of Draftsman. Several years after his retirement an unilateral order has been passed by the competent authority holding petitioner's fixation of salary to be incorrect with effect from the year 1987 onwards and his salary has been unilaterally reduced. It has also been held that arrears of salary would not be payable from 19.07.2010.
The order impugned is assailed with reference to the pleadings made in para 37 of the writ petition as per which no opportunity has been given to the petitioner. It is also urged that in view of the law laid down by the Apex Court in State of Punjab vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334 recovery against a retired Class III employee would otherwise be impermissible, particularly when there is no allegation of misrepresentation or fraud on part of the petitioner.
A counter affidavit has been filed stating that in the year 2009 petitioner has given an undertaking that if his salary is incorrectly fixed then he undertakes to refund the excess amount paid to him. Reliance is placed upon the judgment of the Supreme Court in High Court of Punjab & Haryana and others vs. Jagdev Singh being Civil Appeal No.3500 of 2006, decided on 25.7.2016.
I have heard Sri O. P. Singh, learned Senior Counsel assisted by Sri Indra Jit Singh for the petitioner, Sri A. K. Upadhyaya, holding brief of Sri Narendra Kumar Tiwari for the respondents and learned State Counsel for the State authorities and have perused the materials brought on record.
Specific averment made in para 37 of the writ petition that no opportunity of hearing has been given to the petitioner by the respondents before passing the order impugned has been vaguely denied and what is suggested in the counter affidavit is that no opportunity was required to be given. Petitioner's contention that no opportunity has been given is, therefore, clearly substantiated on record.
Contract of employment between petitioner and employer has come to an end on 30.09.2014. Any attempt on part of the respondents to unilaterally re-determine the salary with effect for the last several decades would clearly fall within the ambit of an order carrying civil consequences and such order cannot be passed except after affording an opportunity of hearing. Order impugned is, therefore, violative of principles of natural justice and cannot be sustained.
So far as the judgment of the Supreme Court in the case of High Court of Punjab & Haryana and others vs. Jagdev Singh (supra) is concerned, the facts therein are clearly distinct and have been noticed in para 2 to 7. In the aforesaid case, petitioner was a judicial officer and the benefit of revised pay scale and selection grade was granted to him on an undertaking that he would return such amount if the benefit is found to be in excess of his entitlement. The petitioner was placed under suspension and was eventually compulsorily retired from service. It was in that context that direction of High Court not to refund excess salary was interfered. Facts of this case are, however, different.
Learned counsel for the petitioner places reliance upon the principles culled out by the Supreme Court in the case of State of Punjab vs. Rafiq Masih (supra). Paragraph 12 of the judgment is relevant and is reproduced hereinafter:-
"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) from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) from employees, when the excess payment has been made for a period in excess of five years, before the order of is issued.
(iv) 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 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."
The above principles are clearly attracted in the facts of the present case.
In view of the above, this writ petition succeeds and is allowed. Order dated 30.01.2017 as also the consequential orders/communications dated 02.02.2017, 05.10.2016 & 28.12.2016 are quashed. Respondents shall be at liberty to afford an opportunity of hearing to the petitioner and to re-determine the salary only for the purposes of payment of pension etc. as per petitioner's correct entitlement, within a period of three months from the date of presentation of a copy of this order and no recovery would be made from the petitioner. Respondents shall also release regular pension to the petitioner from month to month and also release arrears of pension as per the determination allowed to be made after notice to the petitioner, within a further period of two months, thereafter.
Order Date :- 19.1.2021
Ashok Kr.
