Vishwanath Tiwari vs State Of U.P. And Others
2023 Latest Caselaw 12681 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 38
 

 
Case :- WRIT - A No. - 2345 of 2009
 

 
Petitioner :- Vishwanath Tiwari
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- Indra Raj Singh
 
Counsel for Respondent :- C.S.C.,M.K.Shukla
 

 
Hon'ble Saurabh Srivastava,J.

1. Heard Sri Adarsh Singh, learned counsel holding brief of Sri Indra Raj Singh, learned counsel for the petitioner and learned Standing Counsel.

2. The present petition has been filed for the following relief:-

"i. Issue writ of certiorari quashing the impugned orders dated 31.03.2008, 12.11.2008 and 29.12.2008.

ii. Issue writ of mandamus commanding the respondents-2 and 3 to account entire services of the petitioner and fixed posts retiral benefits and to pay along with interest at the rate of 18% per annum till actual payment is made within one month from the commands of this Hon'ble Court."

3. Record reveals that the petitioner was appointed on the post of Physical Teacher in Gandhi Inter College, Maltari, Azamgarh on 08.07.1968 on temporary basis and became permanent on 08.07.1969 and after attaining the age of superannuation, he retired on 30.06.2008. The salary of the petitioner was fixed from time to time under the Government Orders. The Principal and Manager of the institution submitted requisite papers pertaining to the petitioner for fixation of retiral benefits to the respondent nos.2 and 3 and on the basis of information supplied by the Principal and Manager, the responding authority passed the order dated 31.03.2008 without giving any notice or opportunity of hearing to the petitioner and directed the fixation of salary of the petitioner in the Lecturer Grade w.e.f. 25.10.2000 only and further directed to ensure recovery in lieu of the payment already made in the Lecturer Grade to the petitioner.

4. Being aggrieved by the aforesaid order, the petitioner preferred Writ Petition No.20011 of 2008 which was finally disposed of vide order dated 19.04.2008 with liberty to the petitioner to file a representation before the respondent no.3 for establishing his right for payment of salary in Lecturer Grade from the date it has been so paid in his favour.

5. The petitioner moved a representation dated 02.05.2008 before the respondent no.1 which was rejected vide order dated 12.11.2008 without following the principles of natural justice. Thereafter the petitioner preferred a representation before the DIOS, Azamgarh and prayed for initiating the proceedings for payment of retiral benefits of the petitioner. The DIOS without considering the representation of the petitioner, passed consequential order on 29.12.2008 and directed to refix the salary of the petitioner w.e.f. 01.01.1996 and to recover the amount already paid to the petitioner.

6. Learned counsel for the petitioner submits that the salary of the petitioner was always fixed voluntarily by the responding authorities without any role of the petitioner under the existing Government Orders. He further submits that the grade pay of the petitioner has been reduced without affording any opportunity of hearing and without any lawful exercise which cannot be sustained in the eyes of law. It was further submitted that there was no misrepresentation, concealment 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."

7. 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."

8. 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.

9. 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.

10. 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 orders dated 31.03.2008, 12.11.2008 and 29.12.2008, are not sustainable in the eye of law and are hereby quashed. The Respondent nos.2 and 3 are directed not to deduct any amount from the petitioner in the shape of excess amount paid and release his entire amount, if already deducted from the retiral dues of the petitioner, entire exercise shall be finalized within a period of two months from the date of production of a certified copy of this order.

Order Date :- 25.4.2023

Vivek Kr.