Allahabad High Court
Nand Ram vs State Of U.P. And 3 Others on 8 August, 2022
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 34
Case :- WRIT - A No. - 34691 of 2017
Petitioner :- Nand Ram
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Indal Singh
Counsel for Respondent :- C.S.C.,Jamwant Maurya
Hon'ble Neeraj Tiwari,J.
Mention has been made by learned counsel for the petitioner out of turn subject to condition to give notice to other side. Accordingly, clerk of the petitioner has served a notice to learned counsel for the respondent and clerk of the learned counsel for the respondents made endorsement mentioning that refused to accept notice. Mention notice dated 08.08.2022 is taken on record.
Present writ petition has been filed to quash the order dated 24.04.2017 passed by respondent no.4, Executive Officer, Nagar Panchayat, Baldeo, Mathura and order dated 29.12.2016 passed by respondent no.3, Deputy Director, Local Fund Account, Agra Region, Agra.
Counter affidavits have been filed by the respondents.
Learned counsel for the petitioner submitted that father of the petitioner Late Pitamber was appointed on the post of Safai Karmi in Nagar Panchayat, Baldeo, Mathura on 1.8.1972. The services of Late Pitamber became permanent vide order dated 19.7.1990. He retired on 31.10.1999 after attaining the age of superannuation from the post of Safai karmi in the Nagar Panchayat Baldeo, Mathura but no retiral benefits, such as pension, insurance claim etc. was paid to him. Thereafter, the father of petitioner represented to the authorities concerned, but no heed was paid. He has made sincere efforts to get his retiral benefits released, but could not succeed and ultimately he died on 6.10.2001. It is also averred that the mother of the petitioner had also died during the life time of the father of the petitioner.
It is averred that the petitioner have other three brothers and three sisters. It is submitted that if the retiral dues are paid, the same would be distributed to all the brothers and sisters without any discrimination. The petitioner has made last representation dated 10.10.2008 but same has not been decided. Thereafter he filed Writ A No.45095 of 2009, which was disposed of vide order dated 19.04.2016 with direction to the respondents for payment of entire dues along with interest of 12%. Thereafter, impugned order dated 24.04.2017 has been passed and salary of father of the petitioner for four months has been deducted. The impugned order dated 29.12.2016 has been passed having four conditions. Petitioner is aggrieved with Condition No. 1. As per service book, date of birth of late Pitamber was 01.07.1939 and he had to retire on 30.06.1999, but he was superannuated on 31.10.1999, therefore, salary of four months has to be recovered and accordingly consequential order dated 24.04.2017 has also been passed. The petitioner has assailed orders on two grounds. First of all, he submitted that while passing the impugned orders, respondents have not given opportunity to raise any objection. Secondly, in case he was superannuated on 31.10.1999, it is upon respondents to put him under retirement at the age of 60 years according to date of birth mentioned in service book. Therefore, there is no fault on the part of the father of the petitioner.
Learned counsel for the petitioner has placed reliance upon a judgment of the Supreme Court in the case of State of Punjab and Others Vs Rafiq Masih (White washer) and others reported in (2015) 4 SCC 334 wherein the Supreme Court has held that no recovery can be made from the petitioner in case he is a Class-III employee and due to mistake on the part of respondent, excess payment has been made. The operative portion of the judgement reads as under:-
"(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."
In the light of facts mentioned hereinabove as well as law laid down by the Hon'ble Apex Court in the matter of Rafiq Masih (supra), condition no.1 of the impugned order dated 29.12.2016 and consequential order dated 24.04.2017 are bad in law and are liable to be quashed.
Learned standing counsel though opposed the submission of learned counsel for the petitioner but could not dispute the factual and legal preposition.
I have considered the submission of learned counsel for the parties and perused the record.
Petitioner has taken specific plea in para-14 of the affidavit filed along with writ petition that father of the petitioner was not responsible for excess service of four months. He neither concealed any fact nor misrepresented the authorities for excess service. It is only on the fault of the concerned officials, therefore, he cannot be punished and deduction can not be made from his retiral dues. In para-15 of counter affidavit, there is no denial of facts so mentioned in para-14 of the writ petition. I have also perused the judgment of Rafiq Masih (supra). If the respondents had taken work from the father of the petitioner for four months extra beyond the date of superannuation, he was not responsible for that.
In this view of the facts as well as law laid down by the Supreme Court in Rafiq Masih (supra), the impugned order 24.04.2017 passed by respondent no.4, Executive Officer, Nagar Panchayat, Baldeo, Mathura and condition no.1 of order dated 29.12.2016 passed by respondent no.3, Deputy Director, Local Fund Account, Agra Region, Agra cannot survive and are accordingly quashed. The writ petition is allowed.
Respondents are directed to pay entire amount to the petitioner in terms of the order of this Court dated 19.04.2016 in Writ-A No.45095 of 2009.
Order Date :- 8.8.2022
Asha
