Allahabad High Court
Sompal Singh vs State Of U.P. And 5 Others on 21 October, 2022
Bench: Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- WRIT - A No. - 16605 of 2022
Petitioner :- Sompal Singh
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Kamal Kumar Kesherwani
Counsel for Respondent :- C.S.C.,Shashi Kant Verma
Hon'ble Ashutosh Srivastava,J.
Heard Sri Kamal Kumar Kesherwani, learned counsel for the petitioner and Sri Shailendra Singh, learned Standing Counsel for the State-Respondent Nos.1 to 3 and Sri Shashi Kant Verma, learned counsel for the Respondent Nos.4,, 5 & 5.
The challenge made in this writ petition is to an order dated 22.07.2022 passed by the Respondent No.3, Joint Director, Treasury & Pension, Saharanpur Region, Saharanpur, whereby Rs.2,51,347/- has been ordered to be recovered from the pension of the petitioner.
Record reveals that the petitioner was initially appointed on the post of Assistant Teacher in on 19.02.1998.After completion of 10 years satisfactory service the petitioner was granted benefit of selection grade w.e.f. 19.02.2008 in the pay band of 9300-34800 with grade pay of Rs.4600. The petitioner retired on 31.03.2022 and his pension papers were duly forwarded. An objection was raised by the Additional Director, Treasury and Pension with regard to grade pay and increment of the petitioner and directed for recovery of Rs.2,51,347/- from the pension of the petitioner.
Learned Counsel for the petitioner submits that the recovery of amount from the pension of the petitioner has been ordered without affording any opportunity of hearing and without any lawful exercise. He further submits that the recovery order has been passed after retirement of the petitioner, which cannot be sustained in the eyes of law. Learned Counsel for the petitioner further submits that the amount is being sought to be recovered after a gap of about 13 years of pay fixation on the ground that his pay scale was wrongly fixed. It was further submitted that there was no misrepresentation or fraud on the part of the petitioner and in view of the latest pronouncement of Hon'ble Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others 2015 (4) SCC 334 no such recovery can be made from the petitioner. Relevant paragraph 18 of the aforesaid 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."
Recently, this Court in the case of Brijendra Kumar Tripathi & Others Vs. State of U.P. & Others reported in 2019 (4) ADJ 690 (LB) has held as under:-
"....... that the opposite parties have not provided the opportunity of hearing to the petitioners to place their case/defence in support of their fixation of pay by the erstwhile Rural Development Department and being so as well as keeping in view the facts of the case in hand that the pecuniary benefits earlier provided to the petitioners have been affected and serious pre-judice has been caused to the petitioners by the orders dated 11.05.2016, 13.06.2017 and 17.10.2017 as well as consequential orders of recovery of excess amount paid to the petitioners and the principle that an order which involves civil consequence must be passed after following principles of natural justice and after affording opportunity of hearing, this Court feels that orders dated 11.05.2016, 13.06.2016 and 17.10.2017 are unsustainable being violative to Article 14 of the Constitution of India as have been passed without providing opportunity of hearing to the petitioners and are against the principle of natural justice and fair play and as such, liable to be interfered by this Court."
From the perusal of the aforesaid judgements, the position of law, which emerges, is that no recovery can be made from a retired employee without providing him/her an opportunity of hearing. Further, it is also impermissible in law to recover the amount of excess payment made for a period in excess of five years before the order of recovery is issued.
Per Contra, learned Standing Counsel for the State-Respondents submits that the deduction of payment has rightly been made as the basic pay scale to the petitioner was wrongly fixed, for which the petitioner was not entitled. Learned Counsel for the respondent tries to justify the action of the respondents and tried to support the impugned order by drawing attention to various orders, however could not dispute the current legal position as laid down by Hon'ble Apex Court in the case Rafiq Masih (supra). He could not point out that there was any misrepresentation or fraud on the part of the petitioner in such wrong fixation of pay.
Accordingly, the writ petition is allowed, in the light of judgement of Hon'ble Apex Court in the case of Rafiq Masih (supra) and Brijendra Kumar Tripathi (Supra), the impugned order dated 22.07.2022 passed by the Respondent No.3, Joint Director, Treasury & Pension, Saharanpur Region, Saharanpur, is not sustainable in the eye of law and is hereby quashed. The Respondent No.3, is directed not to deduct any amount from the petitioner in the name of excess amount paid and release his entire amount, if already deducted from the post retiral dues of the petitioner, within a period of two months from the date of production of a certified copy of this order.
Order Date :- 21.10.2022
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