Allahabad High Court
Raghubir Singh vs State Of U P And 6 Others on 31 October, 2022
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 34
Case :- WRIT - A No. - 9269 of 2022
Petitioner :- Raghubir Singh
Respondent :- State Of U P And 6 Others
Counsel for Petitioner :- Ramesh Chandra Tiwari
Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
Present petition has been filed with the following prayers:
"i. To issue a writ, order or direction in the nature of certiorari quashing the quash the impugned order dated 14.07.2021 passed by the Assistant Account Officer, U.P. Police Headquarters Lucknow as well as order passed by Senior Superintendent of Police Etah passed by the Senior Superintendent of Police Etah (Annexure No.6 to this writ petition).
ii. To issue a writ, order or direction in the nature of certiorari calling for record regarding amendment of pay fixation whereby the Basic Pay Rs.53,600/- of the Petitioner was amended and Rs.50,500/- was fixed.
iii To issue a writ, order or direction in the nature of mandamus commanding and directing the Senior Superintendent of Police Etah to ensure the pension of the Petitioner be paid month by month.
iv. To issue a writ, order or direction in the nature of mandamus commanding and directing the Respondent to pay the entire dues of the Petitioner along with interest.
iv. To issue a writ, order or direction in the nature of mandamus commanding and directing the Respondent to decide the Representation dated 9.9.2021 of the Petitioner to Senior Superintendent of Police Etah (filed as Annexure No.7 to this writ petition).
vi. To issue any other & further order, as this Hon'ble Court may deem fit & proper in the facts and circumstances of the present case.
vii. To award cost of the writ petition to the Petitioner.
viii. Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 6.1.2021 (filed as Annexure No.C.A.-2) and order dated 17.8.2022 (filed as Annexure No.C.A.-1] passed by Senior Superintendent of Police Etah i.e. Respondent No.4."
Contention of learned counsel for the petitioner is that unauthorized deductions have been proposed to be made while payment of retiral dues, which is contrary to the law laid down by the Hon'ble Apex Court in the case of State of Punjab and others Vs. Rafiq Masih: 2015 (4) SCC 334, wherein it has been held that 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 proposed to be made was 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 the petitioner was not responsible for fixation of incorrect pay scale.
Therefore, under such facts and circumstances of the case, the impugned orders dated 14.07.2021, 06.01.2021, & 17.08.2022 are hereby quashed and writ petition is allowed. No order as to costs.
Respondent no.4 is directed to pay the entire gratuity to the petitioner without deducting any amount with all expedition, preferably within a period of six 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.
The petitioner shall also be entitled to his pension in accordance with law.
Order Date :- 31.10.2022/Nishant
