Suresh Singh And Another vs The State Of U.P. And 5 Others
2023 Latest Caselaw 22318 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:166831
 
Court No. - 34
 

 
Case :- WRIT - A No. - 13313 of 2023
 

 
Petitioner :- Suresh Singh And Another
 
Respondent :- The State Of U.P. And 5 Others
 
Counsel for Petitioner :- Ram Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ajit Kumar,J.

Heard learned counsel for the petitioners and learned Standing Counsel for the State respondents.

Petitioners have questioned the order dated 13th June, 2023 and 22nd March, 2023 respectively, wherein recovery has been directed to be made from computation to the tune of Rs.2,61,232/- in respect of the petitioner No.-1 and Rs.2,53,414/- in respect of the petitioner No.- 2.

The case for recovery has been for wrongful pay fixation done in respect of the petitioner erroneously. The ground of attack is that petitioner being not responsible for any misappropriation could not have been held liable either for suggestio falsi or suppressio veri.

It is argued by learned counsel for the petitioner that in identically placed head constable posted at 33rd Battalion, PAC, Jhansi identical recovery order had been challenged in Writ - A No.- 3239 of 2023 filed by said Natthoo Lal Verma and the said writ petition has been allowed with certain directions for making refund of the amount within certain period failing which interest was also directed to be charged and paid to the petitioner.

I have perused the order of Hon'ble Saral Srivastava,J. and find that his Lordship has allowed writ of Natthoo Lal Verma who was posted also 33rd Batallion, PAC, Jhansi. The order passed by his Lordship on 21st February, 2023 is reproduced hereunder:

"Heard Sri Vijay Gautam, learned Senior Counsel assisted by Sri Atipriya Gautam, learned Counsel for the petitioner and learned Standing Counsel for the respondents.

The present petition has been filed stating that the petitioner has retired from the post of Head Constable on 31.08.2022.

It is stated that after the retirement, certain dues amounting Rs.5,81,444/- have been deducted/ recovered from the post retiral benefit which according to the petitioner is contrary to law.

Learned Standing Counsel argues that the recovery certificate has been issued on account of wrong fixation of salary.

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 State of Punjab and others vs. Rafiq Masih (White Washer); (2015) 4 SCC 334 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 petitioner was not responsible for fixation of incorrect pay scale and consequently for excess payment.

Therefore, under such facts and circumstances of the case, the impugned orders dated 14.12.2022 is hereby quashed and writ petition is allowed. The respondent no.5 is directed to release the entire deducted amount of Rs.5,81,444/- to the petitioner within a period of three months from the date of production of certified copy of this order.

In case, the amount of Rs.5,81,444/- is not released within the aforesaid period, same shall carry simple interest @ 7% per annum from the date the amount became due till the date of its payment.

However, respondents are at liberty to file a recall application within a period of two months if this order is obtained by the petitioner by concealing material fact."

Learned counsel for the petitioner submits that except for the change in the amount of recovery the order passed by the respondents is to effect and verbatim sameto the order issued to Natthoo Lal Verma. Petitioners have also retired like Natthoo Lal Verma on 31st December, 2022 and on 30th September, 2022 respectively and the recovery orders issued in their respect also deserves to be quashed in the light of the judgment passed in the case of Natthoo Lal Verma v. State of U.P. and others passed in Writ ? A No.- 3239 of 2023 decided on 21st February, 2023.

Learned Standing Counsel has, however, sought to justify the order for the reasons assigned therein and in this regard he has placed instructions before this Court, according to which, under the relevant government orders petitioners were not entitled to the benefits the way in which that had been conferred upon and, therefore, recovery cannot be said to be per se bad. However, learned Standing Counsel could not dispute that both the petitioners are identically placed as Natthoo Lal Verma and fall within the category of Group 'C' employees.

Having heard learned counsel for the respective parties and their arguments raised across the bar and having noticed the above facts and also the judgment of this Court in the case of Natthoo Lal Verma (supra), I do not find any good ground to take a different view from what has been taken by a coordinate Bench of this Court in Natthoo Ram Verma (supra), even otherwise this Court as well as Supreme Court has repeatedly held that petitioners, who approach the Court, should be given same treatment. This was so held as in the case of State of U.P. and others v. Arvind Kumar Srivastava and others: (2015) 1 SCC 347. Vide paragraphs 22.1 and 22.2 of the judgment, the Court has held thus:

"22.1 The normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

22.2 However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim."

In view of the above, therefore, in my considered view this petition of the petitioners also deserves to be allowed in terms of the order passed in Writ - A No.- 3239 of 2023 on 21st February, 2023 (supra).

Thus, this petition is allowed. The order impugned for recovery dated 13th June, 2023 and 22nd March, 2023 are hereby quashed.

Petitioners are entitled to the refund of all the amount in the same way as refunded to Natthoo Lal Verma under the direction of this Court passed in his case.

Order Date :- 18.8.2023

Atmesh