State Of U.P.Thru ... vs Pradeep Kumar Sharma
2021 Latest Caselaw 818 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 06.01.2021
 
Delivered on 13.01.2021
 
Court No. - 3
 

 
Case :- SERVICE BENCH No. - 26276 of 2020
 

 
Petitioner :- State Of U.P.Thru Prin.Secy.Agriculture Deptt. Lucknow & Ors
 
Respondent :- Pradeep Kumar Sharma
 
Counsel for Petitioner :- C.S.C.
 

 
Hon'ble Alok Singh,J.

Hon'ble Karunesh Singh Pawar,J.

Heard Learned Additional Chief Standing Counsel for the petitioner.

Under challenge is the impugned judgment and order dated 03.09.2019 passed in Claim Petition No.264 of 2018 ( Pradeep Kumar Sharma Vs. State of U.P. and others) passed by learned State Public Services Tribunal, Indira Bhawan, Lucknow.

By the impugned judgment and order, the learned Tribunal has allowed the claim petition of the respondent and has set-aside the impugned recovery order issued against the claim petitioner/ respondent on account of wrong fixation of salary and further directed to pay back the recovered amount of Rs.3,95,872/- to the respondent/claim petitioner alongwith all consequential benefits and also to pay the arrear of the pension.

Facts, in brief, of the writ petition are that respondent was initially appointed on the post of Overseer on 11.08.1980 in the Agriculture Department U.P. Thereafter, post of Overseer was designated as Junior Engineer Subordinate Agricultural Services Group 2, merged in Subordinate Agricultural Services Group-I Engineering Branch in Agricultural Department U.P. and after rendering the satisfactory service, respondent was retired on 31.08.2015. While the petitioner was at the verge of his retirement Bhoomi Sanrakshan Adhikari,Budaun vide order dated 25.07.2013 passed an order of recovery of amount of Rs.3,95,872/-. The amount was recovered from the salary of the petitioner. The recovery order dated 25.07.2013 was passed on account of pay fixation order dated 25.07.2013. The, the order of pay fixation of 25.07.2013 and consequential recovery order dated 25.07.2013 were under challenge before learned Tribunal alongwith prayer of refund of amount Rs.3,95,872/- to the respondent with further prayer to pay all consequential benefits i.e. revision of pension and arrears of pension etc.

Learned Tribunal after hearing learned counsel for the parties and perusal of record, has recorded categorical findings that re-fixation of salary of the respondents has been done in violation of Government Order darted 16.01.2007 which provides that service record prior to 34 months of date of retirement for the purpose of grant of pension allowing authority is empowered to correct any mistake in determining the pay during service tenure.

The findings recorded by learned Tribunal in his respect reads as under:-

"mijksDr ls Li"V gS fd ekuuh; mPpre U;k;ky; dks mi;qZDr fof/kd O;oLFkk ds n`f"Vxr~ fn0 16-01-2007 esa mYys[kuh; O;oLFkk ds vuqlkj lsok fuo`fRRk ds 34 ekg iwoZ rd osru fu/kkZj.k ls mRiUu =qfV dk fujkdj.k fd;k tk ldrk gSA bl ekeys esa foi{kh la0 3 ,oa 4 }kjk vius vf/kdkj {ks= ls ckgj tkdj 34 ekg ls T;knk ds osru fu/kkZjk.k dk ijh{k.k fd;k x;k gS tks fdlh Hkh fLFkfr esa mfpr ugha dgk tk ldrkA fn0 31-08-2015 dks lsokfuo`RRk gqvk FkkA ;fn ;kph ds osru fu/kkZj.k esa dksbZ =qfV Fkh rks lsok fuo`fRRk ds fnukad ls 34 eghus ls iwoZ rd tkap dj mlesa la'kks/ku fd;k tk ldrk Fkk ysfdu bl ekeys eas foi{kh la0 4 }kjk vius {ks=kf/kdkj ls ckgj tkdj foi{kh la0 3 dks ;kph dk osru fu/kkZj.k djus gsrq funsf'kr fd;k x;kA"

Regarding specific pleas taken by the Department, learned Tribunal has further given a finding that respondent was an employee of Group-III and not Group-II simply because he has been declared as Gazetted Officer did not change the cadre of the respondent neither his group or class. The pay of the respondent was fixed on 01.04.2001 which has been re-fixed vide order dated 25.07.2013. The respondent has no role in pay fixation done in the year 2001 neither it is a case of the department that he has got initially pay fixation in the year 2001 by producing false records.

Learned Tribunal has also recorded finding that pay fixation was done by the competent authority and while re-fixing the pay and passing of recovery order, no opportunity of hearing was provided to the petitioner. It is also found that case of the respondent is squarely covered by the judgment of Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Maseeh ( White Washer) decided on 18.12.2014 in Civil Appeal No.11525 of 2014. The finding recorded by learned Tribunal in para nos. 10 and 11 reads as under:-

"10& foi{khx.k ds mi;qZDr vfHkdFku ds n`f"Vxr esjk ;g Li"V ekuuk gS fd ;kph oxZ&3 dk deZpkjh gS] oxZ&2 dk vf/kdkjh ugh gSA oxZ&3 ds dfri; deZpkjh laoxksZa dks jktif=r ?kksf"kr fd;k x;k gS] ysfdu jktif=r gksus ls fdlh laoxZ dh [email protected] ugha cnyrkA voj vfHk;Urk dk in [email protected]&3 dk in gSA ekuuh; mPp U;k;ky; dk xqykc pUn nqcs cuke m0iz0 jkT; o vU; flfoy fel- fjV fiVh'ku ua0 [email protected] ds okn esa =qfViw.kZ osru fu/kkZj.k ds 'kq)hdj.k dh O;oLFkk nh gS] iz'uxr ekeys esa ;kph ds osru fu/kkZj.k fnukad 01-04-2001 ls la'kks/ku dj vkns'k fnukad 25-07-2013 ls iquZfu/kkZj.k fd;k x;k gS ftlds laca/k esa ;kph dh dksbZ xyrh ugh FkhA blh ifjizs{; esa ekuuh; mPpre U;k;ky; }kjk LVsV vkQ iatkc ,oa vU; cuke jQhd elhg ¼okbZV okW'kj½ flfoy vihy ua0 [email protected] esa fu.khZr fnukafdr 18-12-2014 esa fUkEu O;oLFkk izfrikfnr dh gS&

" 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 through 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."

11- ekuuh; mPpre U;k;ky; }kjk izfrikfnr fl)kUrksa ds ifjizs{; esa ;g Li"V gks tkrk gS fd tks osru fu/kkZj.k fnukad 25-07-2013 'kklukns'k fnukad 16-01-2007 esa izkfo/kkfur O;oLFkk rFkk ekuuh; lqizhe dksVZ ,oa ekuuh; mPp U;k;ky; }kjk izfrikfnr O;oLFkkvksa ds izfrdwy gSA ;kph dh o"kZ 2001 esa fd;s x;s osru fu/kkZj.k esa dksbZ Hkwfedk Fkh u gh dksbZ NYk&diV vFkok xyr vfHkys[k izLrqr dj osru fu/kkZj.k djk;k FkkA osru fu/kkZj.k rRle; Hkh l{ke izkf/kdkjh }kjk fd;k x;k FkkA ;g Hkh Li"V gksrk gS fd osru ds iquZfu/kkZj.k ,oa olwyh vkns'k ikfjr djus ls iwoZ ;kph dks lquokbZ dk dksbZ volj Hkh iznku ugh fd;k x;kA ,slh fLFkfr Hkwfe laj{k.k vf/kdkjh] cnkW;w] }kjk osru fu/kkZj.k vkns'k i=kWd 235 fnukad 25-07-2013 ,oa olwyh ls lEcfU/kr vkns'k i=kad 236 fnukad 25-07-2013 voS/k gSA QyLo:i osru fu/kkZj.k vkns'k fnukad 25-07-2013 ,oa olwyh vkns'k fnukafdr 25-07-2013 vikLr fd;s tkus ;ksX; gSA"

On due consideration of arguments advanced by learned counsel for the petitioner and after perusal of the record we are of the opinion that learned Tribunal has rightly held that re-fixation of pay of the respondent vide order dated 25.07.2013 was contrary to Government Order dated 16.01.2007 and also against the law laid down by Hon'ble Apex Court in the case of Sushil Kumar Singhal Vs. Chief Secretary, Irriagation Department and others reported in 2014(2) ESC 271 (SC), respondent being Class-III employee is entitled for the benefit of the judgment of Hon'ble Supreme Court passed in State of Punjab and others Vs. Rafiq Maseeh (White Washer) (supra). Lastly, while passing the re-fixation order after more than 12 years and consequential recovery order no opportunity of hearing was given to the respondent and thus we find that impugned judgment passed by learned Tribunal calls for no interference or modification.

The writ petition fails and is accordingly dismissed.

Order Date :- 13.01.2021

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