Allahabad High Court
Raj Kumar Kapil vs State Of U.P.Thru ... on 1 July, 2021
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 20
Case :- SERVICE SINGLE No. - 4899 of 2020
Petitioner :- Raj Kumar Kapil
Respondent :- State Of U.P.Thru Prin.Secy.Rural Development Lucknow & Ors.
Counsel for Petitioner :- Karuna Kant Gupta
Counsel for Respondent :- C.S.C.
Hon'ble Manish Mathur,J.
Heard learned counsel for petitioner and learned State Counsel appearing on behalf of the opposite parties.
Petition has been filed against orders dated 07.01.2020, 18.01.2020 and 20.01.2020 whereby the amount of pension and other post-retiral benefits due to petitioner have been revised in accordance with the revision of the last pay drawn due to petitioner. A further prayer for revision of amount of pension and other post-retiral benefits along with refund of Rs.1,52,208/- as well as interest has been made.
Learned counsel for petitioner submits that petitioner was initially appointed on the post of Junior Clerk on 31.05.1984 and subsequently superannuated on 31.12.2019. It has been submitted that subsequent to his superannuation, the last pay drawn of petitioner has been revised to his detriment with the effect that post-retiral benefits due to petitioner also stood revised. The impugned orders also indicated adjustment of an amount of Rs.1,52,208/- on the premise that excess payment had been made to petitioner during his service period.
Learned counsel for petitioner submits that prior to passing of the impugned order re-determining the last pay drawn of petitioner, no opportunity of hearing whatsoever was provided to petitioner but by means of the impugned orders, the amount indicated as being paid excessively to petitioner has already been recovered/adjusted from the post-retiral benefits of petitioner.
Learned counsel for petitioner has placed reliance on a decision of Hon'ble the Supreme Court in State of Punjab & others v. Rafiq Masih (White Washer) & others reported in (2015) 4 SCC 334.
Learned State Counsel appearing on behalf of opposite parties on the basis of counter affidavit submits that petitioner was given the benefit of Second Financial Progressive Grade of Rs.4,200/- as increase in pay-scale on 1.12.2008 and was again granted benefit of additional pay increment at the same Grade-Pay and Pay-Scale on 01.06.2009. He has placed reliance on the Government Order dated 05.11.2014 to submit that if an employee has been granted financial progression on the same Grade Pay-Scale then after regular promotion, there is no provision for fixation of the pay-scale. It has been submitted that aforesaid fact indicated that petitioner was incorrectly paid an additional Pay-Grade which has only been adjusted and there is no question of any recovery having been made against petitioner.
Considering the material on record and submissions advanced by learned counsel for the parties, it is apparent from a perusal of the impugned orders that recovery/adjustment has been made from the post-retiral benefits of petitioner in view of certain excess payment or financial benefits having been extended to petitioner during his service period. It is apparent that the alleged excess payment was made in the year 2009 whereas the petitioner has superannuated in the year 2019. Neither the impugned orders nor counter affidavit indicate any show cause notice or opportunity of hearing having been given to petitioner prior to passing of the impugned orders. Hon'ble the Supreme Court in State of Punjab & others v. Rafiq Masih(supra) in paragraph 18 has held as follows:-
"18. 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."
Upon applicability of aforesaid judgment in the facts and circumstances of the case, it is apparent that petitioner was working on a Class III post. The alleged excess payment was made to him ten years prior to his superannuation and absolutely no opportunity of hearing has been granted to petitioner prior to passing of the impugned orders. As such, it is apparent that petitioner's case is completely covered by the conditions indicated in paragraph 18 of the decision of Hon'ble the Supreme Court in State of Punjab & others v. Rafiq Masih(supra).
Considering aforesaid, the writ petition succeeds and is allowed. A writ in the nature of Certiorari is issued quashing orders dated 07.01.2020, 18.01.2020 and 20.01.2020. A further writ in the nature of Mandamus is issued commanding the opposite parties to refund the amount of Rs.1,52,208/- to the petitioner within a period of eight weeks from the date a copy of this order is produced before the concerned authority. The petitioner shall also be entitled to interest at the rate of 6% per annum from 07.01.2020 till the the date of actual payment in case the refund is not made within the stipulated time period.
Order Date :- 1.7.2021
kvg/-
