Izhar Ali S/O Late Mazhar Ali vs District Magistrate Kheri And ...
2022 Latest Caselaw 9006 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 8
 

 
Case :- WRIT - A No. - 7619 of 2011
 

 
Petitioner :- Izhar Ali S/O Late Mazhar Ali
 
Respondent :- District Magistrate Kheri And Ors.
 
Counsel for Petitioner :- Shafiq Mirza,Humayun Mirza
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri Humayun Mirza, learned counsel for petitioner as well as learned Standing Counsel for the respondents.

2. Undisputed facts of the present case are that the first promotional pay scale of Rs. 1400-2300/- has been granted to the petitioner in view of the order dated 09.08.2000 passed in Writ Petition No. 5763 (SS) of 1998. The said order of learned Single Judge was assailed by the State of U.P. by filing a Special Appeal No. 83 of 2001. It is during the pendency of the special appeal that the petitioner became entitled for grant of second promotional pay-scale which was also paid to him.

3. In the meanwhile, the petitioner has retired from services. Pursuant to which the impugned order has been passed stating that issue pertaining to the first promotional pay-scale was sub-judice and hence the petitioner should not have been paid the second promotional pay-scale.

4. The special appeal preferred by the State of U.P. has been dismissed by means of judgment dated 29.08.2014 and hence there is no dispute that the petitioner was validly granted the first promotional pay-scale of Rs. 1400-2300/-. The only reason for withdrawal of benefit of second promotional pay scale to the petitioner is the pendency of the special appeal before this Court. The special appeal having been dismissed on 29.08.2014 and hence the very foundation of the impugned order ceased to exist, rendering the same nonest arbitary and illegal and hence liable to be set aside.

5. It is also noticed that the impugned order has been passed solely on the basis that special appeal was pending before the Division Bench of this Court. Even otherwise, the second promotional pay-scale has been granted to the petitioner, the same cannot be withdrawn and the money paid to him recovered without giving any opportunity of hearing to the petitioner and the impugned order is suffers to the arbitrariness clearly violative of Article 14 and 16 of the Constitution of India.

6. It is further noticed that there is no infirmity in grant of the second promotional pay-scale nor any such reason stated either in the order or in the counter affidavit filed by the State.

7. It is evident that no opportunity of hearing has been given to the petitioner nor he has any opportunity to defend the order of recovery. It was never disclosed to him as to why the said recovery has been made.

8. The recovery being sought to be made from the petitioner is also otherwise illegal and arbitrary in as much as the same has been passed after retirement of the petitioner and certainly he was not in a manner responsible for grant of the promotional pay scale. The law in this regard has bee well settled in the case of Thomas Daniel Vs. State of Kerala & Ors, Civil Appeal No. 7115 of 2010, in which the Hon'ble Supreme Court has held as under:-

" (9) This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. This Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess.

(10) In Sahib Ram v. State of Haryana and Others1 this Court restrained recovery of payment which was given under the upgraded pay scale on account of wrong construction of relevant order by the authority concerned, without any misrepresentation on part of the employees. It was held thus :

"5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation, the appellant had been paid his salary on the revised scale. However, it is not on account of any 1 1995 Supp (1) SCC 18 misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault.

Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs." (11) In Col. B.J. Akkara (Retd.) v. Government of India and Others2 this Court considered an identical question as under:

"27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 76 1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248], Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] , Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652] ):

(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.

(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular 2 (2006) 11 SCC 709 interpretation of rule/order, which is subsequently found to be erroneous.

28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.

29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to inservice employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 761999 till the issue of the clarificatory circular dated 1192001. Insofar as any excess payment made after the circular dated 1192001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made." (12) In Syed Abdul Qadir and Others v. State of Bihar and Others3 excess payment was sought to be recovered which was made to the appellantsteachers on account of mistake and wrong interpretation of prevailing Bihar Nationalised Secondary School (Service Conditions) Rules, 1983. The appellants therein contended that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount should not be recovered from them, it having been paid without any misrepresentation or fraud on their part. The Court held that the appellants cannot be held responsible in such a situation and recovery of the excess payment should not be ordered, especially when the employee has subsequently retired. The court observed that in general parlance, recovery is prohibited by courts where there exists no misrepresentation or fraud on the part of the employee and when the excess payment has been made by applying a wrong interpretation/ understanding of a Rule or Order. It was held thus:

3 (2009) 3 SCC 475 "59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counteraffidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." (13) In State of Punjab and Others v. Rafiq Masih (White Washer) and Others4 wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and 4 (2015) 4 SCC 334 disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:

"8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.

xxx xxx xxx

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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the 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."

9. Considering the law laid down by Hon'ble the Supreme Court and the facts of the present case, it is noticed that petitioner superannuated from service on 31.12.2008. and only when the matter pertaining to his post retiral dues was under consideration, the respondents realised that certain pay scale granted to the petitioner in the year 2006 was wrongly granted even non-sanction by the competent authority and without giving any opportunity of hearing to the petitioner proceeded to pass the order of recovery.

10. In the entire counter affidavit, it has not been averred that there was any fault on the part of petitioner by wrongly declaring any facts or even indicating that he was responsible for non-sanction by the competent authority for the ACP granted to him.

11. Considering the aforesaid facts, it is noticed that the case of the petitioner is squarely covered by the judgment of the Supreme Court in the case of Thomas Daniel (Supra). Accordingly, the impugned orders dated 17.06.2011, 28.06.2011 and 02.08.2011 are set aside. Accordingly, the impugned order dated 16.08.2021 is set aside. The petitioner is entitled for all consequential benefits and the amount recovered which shall be remitted to him within six weeks along with interest @ 6 % per annum from the date a certified copy of this order is produced before him . His pension shall be accordingly recomputed and a fresh PPO will also be issued within the aforesaid period.

12. With the above, observations / directions, the writ petition is allowed.

(Alok Mathur, J.)

Order Date :- 3.8.2022

Ravi/