Allahabad High Court
Smt. Chandrakala vs State Of U.P. And 5 Others on 16 December, 2022
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 34
Case :- WRIT - A No. - 15774 of 2022
Petitioner :- Smt. Chandrakala
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Ramesh Chandra Tiwari
Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
Instructions filed today in Court are taken on record.
Heard learned counsel for petitioner and learned standing counsel for State-respondents.
Present petition has been filed with the following prayers:-
"i. TO ISSUE a writ, order or direction in the nature of certiorari quashing the impugned order dated 5.3.2021 passed by Respondent No.4 (Annexure No.2 to this writ petition) as well as the impugned order dated 5.7.2021 passed by Superintendent of Police Firozabad i.e. Respondent No.4 (Annexure No.4 to this writ petition).
ii. TO ISSUE a writ, order or direction in the nature of mandamus commanding and directing the Respondents to pay the revised pension of the Petitioner in accordance with basic pay Rs.58,600/- and return the recovery amount Rs.3,69,619/ deducted from the arrear of the husband of Petitioner as well as pay interest of arrears at the rate of 18% per annum on the difference of amount of pension and post retirement benefits till the date of actual payment."
Learned counsel for the petitioner submitted that husband of petitioner died during the course of service on 13.11.2020. He next submitted that after death of her husband, post death dues of petitioner has been finalized vide orders dated 05.03.2021 & 05.07.2021 with deduction of Rs.3,69,619/-. He further submitted that in the counter affidavit, there is no allegation against the husband of petitioner and due to incorrect fixation of pay scale, aforesaid deduction has been made. He lastly submitted that in light of judgement of Apex Court in the matter of State of Punjab and others Vs. Rafiq Masih: 2015 (4) SCC 334, in case of incorrect fixation of pay scale, any payment is made, no recovery can be made after retirement from Class-III and Class-IV employee. Therefore, impugned orders are bad and liable to be set aside.
Learned Standing Counsel has opposed the submission but could not dispute the fact that deduction was made due to incorrect fixation of pay scale.
I have considered the rival submissions advanced by the learned counsel for the parties and perused the records as well as impugned order. Facts of the case are undisputed. Apex Court in the case of Rafiq Masih (supra) while dealing with such dispute, had framed following guidelines:-
"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."
Undisputedly, case of petitioner is squarely covered with the judgment of Rafiq Masih (supra) and petitioner was not responsible for fixation of incorrect pay scale and consequently for excess payment.
Therefore, under such facts and circumstances of the case, the impugned orders dated 5.3.2021 & 5.7.2021 are hereby quashed and writ petition is allowed. No order as to costs.
Respondent no.4 is directed to pay the entire deducted amount along with interest as provided under the Payment of Gratuity Act, 1972 from due date to the date of actual payment within eight weeks from the date of production of certified copy of this order.
However, liberty is given to State-authorities to conduct inquiry in the matter and to fix the responsibility for excess payment and recover the same from the Officers/employees, who are responsible for the same.
Order Date :- 16.12.2022
nishant
