Allahabad High Court
Sanjay Kumar Saxena vs State Of U.P. Thru. Addl. Chief ... on 5 December, 2022
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 8
Case :- WRIT - A No. - 8146 of 2022
Petitioner :- Sanjay Kumar Saxena
Respondent :- State Of U.P. Thru. Addl. Chief Secy./ Prin. Secy. Public Works Deptt. (P.W.D.), Lko. And 3 Others
Counsel for Petitioner :- Vijai Shankar Tripathi
Counsel for Respondent :- C.S.C.
Hon'ble Alok Mathur,J.
1. Heard Sri Vijai Shankar Tripathi, learned counsel for the petitioner as well as learned Standing counsel for the opposite parties.
2. With the consent of the parties the petition is being decided at the admission stage itself.
3. It has been submitted by learned counsel for the petitioner that the petitioner was initially appointed on the post of Junior Engineer in Public Works Department on adhoc basis on 28.10.1983 and subsequently his services were regularized from the date of his appointment and further confirmed on 1.3.1990. The petitioner superannuated from the services on 31.3.2020 from the post of Assistant Engineer. Subsequent to his retirement pension was sanctioned and the petitioner was receiving his pension when due to revision of pay scale fresh Pension Payment Order was issued and his pension was accordingly revised.
4. The grievance raised by the petitioner in the present writ petition is that by mans of order dated 18.6.2022 passed by Chief Finance and Accounts Officer, Public Works Department holding that his pay fixation done on 1.10.1998 and 1.10.2002 were erroneous and, hence, from 18.10.1997 his pay has been revised and the amount paid to the petitioner in excess of what he was entitled have also been recovered from his post retiral dues amounting to Rs.10,80,920/-.
5. Learned counsel for the petitioner submits that a bare perusal of the order dated 18.6.2020 would indicate that no opportunity of hearing was provided to the petitioner prior to passing of the said order and even in the said order it is not clear as to what was the mistake sought to be rectified by the respondents. It is abundantly clear that no opportunity of hearing was afforded to the petitioner. Learned counsel for the petitioner has submitted that there are various government orders where the department themselves have barred recovery or recall of orders granting pecuniary benefits after a period of five years. He submits that in case any notice would have been given to the petitioner he would have defended such recall or recovery order in support of his claim but not giving opportunity the respondents have precluded the petitioner from placing his version before the authority concerned before passing the impugned order and accordingly submits that the order is clearly arbitrary and beyond the jurisdiction of the partied to pass the same.
6. Learned Counsel for the petitioner has placed reliance upon the Apex Court judgment in the case of State of Punjab and others Vs. Rafiq Masih (White Washer), 2015 AIR (SC) 696 to submit that his matter is squarely covered by the said judgment.
7. Learned Standing counsel has supported the impugned order bout could not dispute the aforesaid fats.
8. Considering the fact that the petitioner has superannuated from service on 31st March, 2020 subsequent to which he was getting his pension regularly and after more than five years of his retirement his salary from 1997 onward has been re-fixed. It is clear that the said exercise of the power cannot be justified as from a perusal of the impugned order why this anomaly could not have been discovered at the time when the petitioner was in service and why it took 25 years for the State to find out the error in fixation of salary of the petitioner. Even otherwise it is noticed that in case there was any error in fixation of the salary of the petitioner the respondents were duty bound to provide the petitioner an opportunity of hearing and by not providing such opportunity rendering the entire proceedings illegal and arbitrary and is liable to be quashed. Further, the case of the petitioner is squarely covered by the aforesaid judgment of the Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) (Supra). The relevant portion of the judgment is quoted as under:-
"12. 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."
9. A perusal of the order could not indicate as to whether any notice was sent to the petitioner or any response was sought and, hence, this Court is of considered view that no opportunity was given to the petitioner nor was he associated with it prior to passing of the said order and consequently the same is clearly illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India. Where the salary which has already been disbursed to an employee, prior to 25 years, is sought to be recovered , then it is mandatory for the State to give an opportunity of hearing to such employee. Salary which has been paid to a person becomes part of his property which are protected under Article 300 A and any order seeking to recover, withdraw or interfere with the same then necessarily the said government servant should have been given opportunity of hearing
10. In light of the above, the pay fixation order dated 18.6.2020 as well as the order for recovery, as contained in Annexure No.s 1 and 2 respectively to the writ petition, are clearly illegal and arbitrary and are quashed.
11. The matter is remitted back to the competent authority to pass fresh order with regard to pay fixation after giving opportunity of hearing to the petitioner. Let such exercise be concluded expeditiously, say within a period of two months from the date of production of a certified copy of this order before the competent authority. Recovery, if any, shall be made only after passing the fresh order in pursuance of the direction of this Court as stated here-in-above.
12. The writ petition is, thus, allowed.
Order Date :- 5.12.2022 (Alok Mathur, J.)
RKM.
