Allahabad High Court
Subhash Pandey vs State Of U P And 3 Others on 18 May, 2022
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 35
Case :- WRIT - A No. - 5376 of 2022
Petitioner :- Subhash Pandey
Respondent :- State Of U P And 3 Others
Counsel for Petitioner :- V.R. Tiwari
Counsel for Respondent :- C.S.C.,Devesh Vikram,Rishu Mishra
Hon'ble Ajit Kumar,J.
Heard learned counsel for the parties.
By means of this petition filed under Article 226 of the Constitution, petitioner has prayed for quashing of the order dated 08.03.2022 passed by the Executive Engineer whereby petitioner has been saddled with the liability to pay back Rs.3,780/- as it is stated in the order impugned that excess payment was drawn by the petitioner during service period due to wrong pay fixation.
Counsel for the petitioner submits that the petitioner had already retired from the establishment on 30.11.2019 and thereafter the fixation has been done vide order dated 02.03.2022 and upon such re-fixation, the excess amount is calculated which is alleged to have been paid to the petitioner. He submits that the petitioner being a Class-IV employee and he being not responsible in any manner in respect of wrongful pay fixation of salary by the respondent, he cannot be fastened with the liability to pay back any amount paid in excess by the establishment. Learned counsel has relied upon the judgment of the Supreme Court in the case of State of Punjab vs. Rafiq Masih (White washer) & ors 2015 SCC (4) 334 (supra).
A counter affidavit has been filed in the matter and the only plea taken is that since wrongful pay fixation had been done and resultantly petitioner got paid excess amount; so consequently the recovery has been made for the excess amount already paid. However it is not disputed that the pay fixation has come to be withheld only in the year 2022 w.e.f. 2011 and it is also not disputed that the petitioner was not responsible in any manner for such pay fixation.
In such above view of the matter, this Court is of the considered view that the recovery as is sought to be made from the petitioner in respect of the excess paid to him under the order impugned, cannot be sustained and so also on this ground the petitioner's gratuity amount and pension should not have been withheld.
In the case of Rafiq Masih (supra), the Court had very categorically held that the recovery cannot be pursued against a retired employee specially in case of Class-III and Class-IV employee. The operative portion of the said judgement that contains directions, is reproduced hereunder:
"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."
(emphasis added)
Applying the above principles of law laid down by the Supreme court, the order impugned to the facts of the present case, the order impugned dated 08.03.2022 passed by the respondent cannot be sustained in law and deserves to be set aside as I also find recovery to be iniquitous in the present case.
Accordingly, the writ petition succeeds and is allowed. The order dated 08.03.2022 is hereby set aside.
The respondents are directed to immediately calculate the pension of the petitioner and finalise the same and also make payment thereof within a period of two months. The gratuity amount may also be paid within the same period.
Since the petitioner has not been responsible for any delay committed on the part of the respondents for the post retirement dues, inasmuch as, the recovery as ordered by the respondents was wholly illegal in light of the law laid down in the said judgment of this court Rafiq Masih (supra), petitioner is also held entitled to interest as admissible in law. Accordingly, the same shall also be calculated and be paid within the same period as directed herein above from the date amount had become due till the date actual payment is made.
Order Date :- 18.5.2022
P Kesari
