Allahabad High Court
Shashikala vs State Of U P And 2 Others on 19 March, 2021
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 36
Case :- WRIT - A No. - 13728 of 2020
Petitioner :- Shashikala
Respondent :- State Of U P And 2 Others
Counsel for Petitioner :- Santosh Yadav
Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the parties.
The petitioner is before this Court assailing the validity of the impugned order dated 12.2.2020 passed by the second respondent as well as the order dated 09.1.2020 passed by the third respondent.
Learned counsel for the petitioner submits that the petitioner was initially appointed on the post of Constable in Civil Police on 30.11.1982. Thereafter, she was promoted to the post of Head Constable and she was also given the pay scale of Sub Inspector. After attaining the age of superannuation, the petitioner retired from the service on 31.10.2019. After his retirement, the third respondent vide order dated 09.1.2020 proceeded to re-fix the salary of the petitioner on the ground that pay scale of Rs.14,430/- was wrongly granted to her vide order dated 25.1.2009. It is submitted that the petitioner has already been retired from the service and therefore, the respondents have no authority to revise her pension after re-fixing the pay scale and directed for recovery. Reliance was placed upon the judgment of the Apex Court in State of Punjab and others Vs. Rafiq Masih (white washer) and others, 2015 (4) SCC 334 in order to contend that petitioner being Class III employees, her salary ought not to be deducted without any fault of the employee.
Learned counsel for the petitioner also submits that there is no allegation of misrepresentation or fraud practiced by the petitioner in the matter. Submission is that petitioner is Class III employee and the amount already paid to her, in such circumstances, ought not to be recovered in view of the law laid down by the Apex Court in the case of State of Punjab vs. Rafiq Masih (supra) without any opportunity of hearing. He further makes submission that petitioner's grievance is to be examined by the authority concerned, afresh, in accordance with law.
So far as the factual and legal aspect of the matter is concerned, the same is not disputed by learned Standing Counsel.
Considering the hardship which may be caused to a class III and class IV employee if recovery is affected from such employee, the Hon'ble Supreme Court in State of Punjab vs. Rafiq Masih (supra) has been pleased to lay down following principles in para 18:-
"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."
Admittedly, there does not appear to be any case of misrepresentation or fraud on part of the petitioner in the matter and while passing the order impugned the respondent authority has not taken any consideration of the law laid down by the Apex Court in State of U.P. vs. Rafiq Masih (supra). In such circumstances, the orders impugned cannot sustain and the same are set aside.
Consequently, the writ petition is allowed and the matter is relegated to the authority concerned to examine the matter afresh, keeping in view the principles laid down by the Apex Court in State of U.P. vs. Rafiq Masih (supra), within a period of two months from the date of presentation of a copy of this order.
Order Date :- 19.3.2021
RKP
