Allahabad High Court
Mitendra Kumar Gautam vs State Of U.P. And 6 Others on 2 February, 2023
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- WRIT - A No. - 21289 of 2022
Petitioner :- Mitendra Kumar Gautam
Respondent :- State Of U.P. And 6 Others
Counsel for Petitioner :- Atipriya Gautam,Devesh Mishra,Jay Vishwanath Pandey,Sr. Advocate
Counsel for Respondent :- C.S.C
Hon'ble Jaspreet Singh,J.
Heard learned counsel for the petitioner and learned standing counsel for the respondents.
With the consent of learned counsel for the contesting parties, the instant writ petition is being finally disposed of.
The brief facts of the case are that initially, the petitioner was appointed as Constable on 26.12.1979 in U.P. Police Department. Thereafter, he has completed his necessary training and joined his duties and thereafter he has been promoted on the post of Head Constable. On 30.06.2020, after attaining the age of superannuation, he retired from the said post.
It is submitted that by means of the order dated 18.06.2020, an interim pension to a sum of Rs.18,660/- per months and interim gratuity to a sum of Rs.10,80,694/- have been sanctioned. It the said order, it has been stated that a sum of Rs.1,20,077/- towards gratuity has been withheld. It is also pointed out that the interim pension has been sanctioned, but the same has not been provided to the petitioner. It is also informed that pension to a sum of Rs.25,200/- has been paid to the petitioner w.e.f. December, 2021.
It is also informed that by another separate order dated 18.06.2020, the leave encashment has been sanctioned and it has been mentioned in the order dated basic pay of the petitioner is Rs.62,200/- per month. It is submitted that after the retirement of the petitioner, the amount of leave encashment amounting to Rs.7,15,000/-, GPF amounting to Rs.2,65,000/- and 90% of Gratuity amounting to Rs.10,80,694/- as well as Insurance to a sum of Rs.1,02,000/- have already been paid to the petitioner. It has been pointed that commutation of pension and 10% gratuity amount has not been paid to the petitioner till date.
It is submitted that by means of the order dated 24.09.2020 passed by the respondent No.6, the salary of the petitioner has been amended/deducted in a most illegal manner, which has caused monetary loss to the petitioner.
It is urged that by means of the impugned order dated 30.09.2020 passed by the respondent No.6, an amount of Rs.10,47,406/- has been directed to be recovered from the petitioner, which has been paid to the petitioner in excess of the salary.
It is submitted that the respondent No.6 passed the impugned order dated 30.09.2020 after retirement of the petitioner and that too without providing an opportunity of hearing. It is pointed out that due to substantial reduction of pay, the pension as well as other post retiral dues have also been reduced in a most illegal manner by the respondents.
His next submission is that the petitioner is a Group-C employee, therefore, in view of the judgment of the Hon'ble Supreme Court in the case of State of Punjab and others v. Rafiq Masih (White Washer), reported in [(2015) 4 SCC 334], the recovery of the amount cannot be made. He further submitted that the petitioner has not committed any fraud nor he misrepresented the fact before the respondents in fixation of salary, therefore, the recovery proceeding initiated against the petitioner is not justifiable.
Learned counsel appearing for the respondents states that the grievance of the petitioner shall be examined by the authority concerned afresh in accordance with law.
Considering the hardship which may be caused to a class III and class IV employee if recovery is affected from such employee, the Hon'ble Supreme Court in the case of Rafiq Masih (Supra) has been pleased to lay down following principles in para 18:-
"18. 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."
Admittedly, there does not appear to be any case of misrepresentation or fraud on the part of the petitioner in the matter, nor the learned standing counsel has raised any such issue nor it has been indicated in the written instructions which are on record.
In such circumstances, the order impugned dated 30.09.2020 cannot be sustained and is set aside. The matter is remitted back to the authority concerned to examine the matter, afresh, and pass appropriate order, keeping in view the principles laid down by the Apex Court in the case of Rafiq Masih (supra), within a period of three months from the date of presentation of an authenticated copy of this order. Whatever retiral dues are found payable shall be released to the petitioner within a further period of two months.
As regards, the claim of interest on the delay dues, it would be open to the petitioner to raise such grievance before the appropriate forum.
Writ petition is accordingly disposed of.
Order Date :- 2.2.2023
Asheesh
