Allahabad High Court
Jayveer Singh vs State Of U.P. And 4 Others on 14 December, 2023
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:236813
Court No. - 34
Case :- WRIT - A No. - 15872 of 2023
Petitioner :- Jayveer Singh
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Amit Goel
Counsel for Respondent :- C.S.C.
Hon'ble Ajit Kumar,J.
1. Heard learned counsel for the parties.
2. Despite order passed on 21.09.2023, no counter affidavit had been filed so the Court proceeded to grant last opportunity to learned Standing Counsel to file counter affidavit on 17.11.2023. Today again, learned Standing Counsel submits that despite letters sent to on 21.09.2023 and 17.11.20223 by fax, no response has been received.
3. Thus, it appears that State-respondents are not interested in contesting the matter and are acquiescing to relief prayed for in the writ petition.
4. In the facts of the case petitioner was working as a Group-D employee with the respondent establishment came to attain age of superannuation on 31.01.2023 but soon thereafter an order was passed on 10.04.2023 directing for recovery from his post retirement dues on account of excess payment made to the petitioner due to wrongful pay fixation. The order dated 11.06.2023 neither discloses that any notice or opportunity was given to the petitioner before passing it nor was there any undertaking of the petitioner at the time of such pay fixation.
5. Thus, respondents cannot justify the recovery for the judgment in case of High Court of Punjab & Haryana v. Jagdev Singh; 2016 (14) SCC 267 and the matter, therefore, stands covered with judgment of State of Punjab vs. Rafiq Masih (White Washer) reported in 2015 (4) SCC 334 which clearly provides that no recovery can be pursued from a retired employee more especially, Group-C and Group-D employee. Still further those who have retired as such, no recovery can be pursued. In the case of Rafiq Masih (supra), it has been observed thus:
"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."
6. Above view has been followed subsequently by the Apex Court in the case of Thomas Daniel vs. State of Kerala & ors; (Live Law(SC) 438.
7. It has been argued in his behalf that petitioner neither mislead the authorities, nor made any misrepresentation of fact for being conferred upon such pay scale benefits which according to the respondents have wrongly been given to the petitioner. It is, thus, clear that he is neither guilty for suppresio veri and suggestio falsi.
8. This argument could not be successfully confronted by the learned Standing Counsel appearing for the State-respondents.
9. In view of the above, the orders dated 10.04.2023 and 11.06.2023 (impugned in this petition) are hereby quashed.
10. The legal position is also equally sound that ignorance of law is no excuse. In the case of The Swadehi Cotton Mills Co. Ltd. vs. The Government of U.P. & ors; 1975 (4) SCC 37, the Supreme Court vide paragraph 3 has held thus that "The courts merely interpret the law and do not make law. Ignorance of law is not an excuse................"
11. Accordingly, recovery being against the law, petitioner is not only entitled to refund but interest as well. Thus, the amount already recovered/withheld is directed to be refunded along with 8% interest within two months of presentation of certified copy of this order.
12. With the aforesaid directions and observations, writ petition succeeds and is allowed.
Order Date :- 14.12.2023
P Kesari
