State Of ... vs Shitla Prasad Dubey
2022 Latest Caselaw 3250 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 2
 

 
Case :- SPECIAL APPEAL No. - 205 of 2022
 

 
Appellant :- State Of U.P.Thru.Prin.Secy.Deptt. Of Fin. Govt.U.P. Civil Secrt.Lko.And Ors(In Wria 24014 Of 2018)
 
Respondent :- Shitla Prasad Dubey
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Vyas Narayan Shukla
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Subhash Vidyarthi,J.

1. Heard Shri Manjeev Shukla, the learned Additional Chief Standing Counsel appearing for the appellants and Sri Vyas Narayan Shukla, Advocate, the learned counsel appearing for the respondent.

2. By means of the instant special appeal filed under Chapter VIII Rule 5 of the Allahabad High Court Rules, the appellants have challenged the judgment and order dated 11-01-2021 passed by the learned Single Judge allowing Writ Petition No. 24014 (S/S) of 2018, which was filed challenging the order dated 22-06-2016 for recovery of an excess amount of Rs.1,97,084/- paid to the petitioner (the respondent herein) from the amount of gratuity payable to him.

3. Writ Petition No. 24014 (S/S) of 2018 was filed by the petitioner (the respondent herein) pleading that while the petitioner was working as Gram Vikas Adhikari, the District Development Officer, Sultanpur had issued an Office Order dated 13-03-2013 whereby the grade pay of two persons, including the petitioner, was upgraded from Rs. 2,800/- to Rs. 4,600/- with effect from 01-12-2008. It was mentioned in the order that the modified grade pay can be altered as per the directions issued by the Government / Department in future. The petitioner started receiving Rs.4,600/- Grade Pay in pursuance of the aforesaid order. The petitioner retired on 29-02-2016 while he was working on the post of Gram Vikas Adhikari.

4. On 22-06-2016 the District Development Officer, Sultanpur wrote a letter to the Senior Treasury Officer, Sultanpur stating that an amount of Rs.1,97,084/- which has been paid to the petitioner in excess, be adjusted while making the payment of gratuity to him.

5. The petitioner challenged the aforesaid order dated 22-06-2016 on the ground that he was given the Grade Pay of Rs.4,600/- by means of the order dated 01-12-2008 passed by the District Development Officer, Sultanpur and he did not play any fraud or mischief and did not suppress any material facts for getting the aforesaid Grade Pay. The petitioner further contended that he retired on 29-02-2016 and the order for adjustment of amount of Rs.1,97,084/- from the amount payable as gratuity, has been passed on 22-06-2016, i.e., after about four months since his retirement, which is not permissible in law.

6. In the counter affidavit filed on behalf of the respondents (the present appellants), it was stated that in response to the letters dated 21-01-2013 and the 29-04-2013 sent by the District Development Officer seeking guidance regarding admissibility of the benefit of Ist, 2nd and 3rd A.C.P. to the Village Development Officers, the Joint Director, Rural Development wrote a letter dated 04-09-2013 stating that such Village Development Officers as are receiving Grade Pay of Rs.2,000/-, will get 1st A.C.P. of 2,400/- upon completing 10 years' satisfactory service, 2nd A.C.P. of Rs.2,800/- after completing 16 years' satisfactory service and 3rd A.C.P. of Rs.4,200/- upon completing 26 years' satisfactory service. Besides this, the Village Development Officers who have already been granted 1st A.C.P. or 2nd promotional pay-scale as on 30-11-2008, will get the benefit of A.C.P. as per the provisions contained in paragraph 3 of the Government Order dated 04-05-2010. Thus, the benefit of Rs.2,800/- as 1st A.C.P., Rs.4,600/- as 2nd A.C.P. and Rs.5,400/- as 3rd A.C.P. given by the District Development Officer to the Village Development Officers was against the Government Orders / Rules. The said letter directed the District Development Officer to cancel the orders granting benefit of Rs.2,800/- as 1st A.C.P., Rs.4,600/- as 2nd A.C.P. and Rs.5,400/- as 3rd A.C.P. to the Village Development Officers and to recover the excess amount paid to such officers.

7. In furtherance of the aforesaid letter dated 04-09-2013 issued by the Joint Director Rural Development, the District Development Officer, Amethi issued an order dated 26-11-2013 cancelling the earlier order dated 13-03-2013 and directing that grade pay of Rs. 4,200/- will be payable to the petitioner and the other person named in the order dated 13-03-2013. The order further provided that the excess amount paid to the employees towards grade pay, be recovered from them.

8. On 25-04-2016 the petitioner gave an application to the District Development Officer, Sultanpur stating that he has retired on 29-02-2016. He was paid salary in the pay-band of Rs.9,300/-34,800/- with Grade Pay of Rs.4,600/- whereas he ought to have been paid grade pay at the rate of Rs. 4,200/- only. He requested that the excess amount paid to him be recovered from him. Accordingly, on 09-06-2016, the District Development Officer, Sultanpur sent a letter to the Additional Director, Pension and Treasury, Faizabad requesting him to pay the amount of pension, gratuity and leave enchashment to the petitioner, after recovering a sum of Rs. 1,97,084/- from the amount of gratuity payable to him. On 13-06-2016 the amount payable to the petitioner after deducting the requested sum of Rs. 1,97,084/-, was paid to him.

9. On 20-08-2018, the petitioner filed Writ Petition No. 24014 (S/S) of 2018 challenging the order of recovery of the excess amount paid to him.

10. By means of the judgment dated 24-07-2020 the learned Single Judge allowed the writ petition filed by the petitioner (respondent herein) holding that the Commissioner did not state anything to say as to how the Government Order was violated while passing the order dated 13-03-2013 by which the higher grade pay was given to the petitioner. The petitioner retired on 29-09-2016 and after his retirement nothing was paid to him and in these circumstances the petitioner was compelled to give an application agreeing for receiving Rs.4,200/- in place of Rs.4,600/- as Grade Pay. The learned Single Judge referred to the statement made by the petitioner in paragraph 4 of the Rejoinder Affidavit wherein he has stated that he had written the letter dated 25-04-2016 for the reason that the District Development Officer, Sultanpur had threatened him that unless the petitioner gave an application stating that he agrees to payment of grade pay of Rs.4,200/- in place of Rs.4,600/- and also for adjustment of the excess amount, his pension will not be sanctioned.

11. The learned Single Judge has relied upon the judgment of the Hon'ble Supreme Court in the case of State of Punjab and Others Vs. Rafiq Masih (White Washer), (2015) 4 SCC 334, in which it has been held that: -

"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."

12. The learned Single Judge has held that before passing the order for recovery of the amount, no opportunity was given to the petitioner to show-cause. The provisions of Gratuity Act, 1972 do not permit recovery from the amount of gratuity except with certain exceptions and the present case does not fall under those exceptions.

13. The State has filed the present intra-court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules mainly on the ground that the respondent herein had himself made a request for recovery of excess amount paid to him due to wrong fixation of pay and, therefore, he cannot challenge the recovery. The learned State Counsel has submitted that in High Court of Punjab & Haryana and Others Vs. Jagdev Singh (2016) 14 SCC 267, the Hon'ble Supreme Court has held that where the recovery has been made with the consent of the concerned employee, there will be no bar against the recovery. The State has also challenged the order dated 11-01-2021 on the ground that on 25-04-2016 the petitioner had himself given a letter requesting for recovering the excess amount and till filing of the rejoinder affidavit, he did not raise any protest against the aforesaid request. Therefore, the averments made by the respondent/petitioner in the rejoinder affidavit are an outcome of an after thought and the same cannot be relied upon, more particularly without there being any material to substantiate the said stand.

14. We have heard the submissions of the learned counsel appearing for the contesting parties and perused the record.

15. In Jagdev Singh (Supra) while referring to the earlier judgment in the case of Rafiq Masih (Whiter Washer) (supra), the Hon'ble Supreme Court held that "The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking."

16. Therefore, in view of the law laid down in Jagdev Singh (Supra) recovery of excess amount will not be barred if the petitioner has given consent for recovery of the excess amount paid to him. In the present case, the petitioner has not given a mere consent for recovery of the excess amount; rather he has made a request for it. Therefore, he cannot challenge the recovery of the excess amount made in furtherance of his own request.

17. It is important to note that in the writ petition, the petitioner did not disclose the fact that he had written the letter dated 25-04-2016 requesting the District Development Officer to fix his pay in Grade Pay of Rs.4,200/- in place of Rs.4,600/- and to deduct the excess amount paid to him. This fact certainly was a material fact and the writ petition filed by concealing the material fact was liable to be dismissed on this ground alone, as it is trite to say that while approaching this Court by filing a writ petition under Article 226 of the Constitution of India, a person must come with clean hands by disclosing all the relevant and material facts.

18. When the fact of the petitioner having written letter dated 25-04-2016 making a request for fixation of his Grade Pay at Rs.4,200/- was filed along with the counter affidavit filed by the State, the petitioner filed a rejoinder affidavit stating therein that the letter dated 25-04-2016 was written by him for the reasons that the District Development Officer had threatened him that unless the application was given, pension will not be sanctioned to him.

19. The allegation regarding the letter dated 25-04-2016 having been written under a threat extended by the District Development Officer, was made for the first time in the rejoinder affidavit, which was signed and verified on 27-11-2018 i.e. after expiry of more than two and half years since the alleged threat had been extended. This fact was not pleaded even in the writ petition and it appears to be a product of an after-thought, after the petitioner's the letter dated 25-04-2016 was brought on record through the counter affidavit filed on behalf of the State. It is settled law that the purpose of filing a rejoinder affidavit is only clarification of the pleadings made by the respondents in the counter affidavit and new facts cannot be pleaded in the rejoinder affidavit. Therefore, the aforesaid allegation of threat pleaded in the rejoinder affidavit cannot be accepted.

20. Learned counsel for the respondent has placed reliance on a judgement dated 27-09-2018 passed by a Single Bench of this Court in Writ Petition No. 16472 (S/S) of 2018 in which it has been held that an undertaking given by an employee under protest for recovery of excess amount paid to him would not empower the respondent to make any recovery from the petitioner. The aforesaid view would not apply in the present case as in the present case, the petitioner had not given any undertaking; rather he had made a request for recovering the excess amount paid to him and moreover, the said letter was not written by the petitioner under protest. Therefore, the aforesaid judgement relied upon by the learned counsel for the respondent has no application to the facts of the present case. Keeping in view the aforesaid facts and circumstances of the case, we find that the order dated 11-01-2021 passed by the learned Single Judge in Writ Petition No. 24014 (S/S) of 2018 is not applicable to the facts of the present case.

21. Regarding denial of opportunity before passing the impugned order of deduction of excess amount paid to the petitioner, we may say that when the deduction was made in furtherance of a request made by the petitioner himself for recovering the excess amount paid to him, there was no question of any opportunity being given to the petitioner to show-cause as to why his own request be not accepted. Therefore, in the peculiar facts and circumstances of the case, there was no need to give any opportunity to the petitioner to show-cause against the proposed deduction which was to be made as per his own request.

22. In view of the aforesaid discussion, we are unable to agree with the reasons given by the Hon'ble Single Judge for holding that the recovery of excess amount paid to the petitioner being made in furtherance of his own request is illegal. In view of the reasons stated in the preceding paragraphs of this judgement, we find that the said recovery does not suffer from any illegality.

23. Accordingly, the instant special appeal is allowed. The judgment and order dated 11-01-2021 passed by the learned Single Judge in Writ Petition No.24014(S/S) of 2018 is set aside and the writ petition stands dismissed.

24. However, there will be no order as to costs.

Order Date :- 18.5.2022

Jaswant