Allahabad High Court
Mushtaq Ahmad vs State Of U.P. And 3 Others on 7 February, 2023
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- WRIT - A No. - 18400 of 2022
Petitioner :- Mushtaq Ahmad
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Istiyaq Ali,Ali Hasan
Counsel for Respondent :- C.S.C.
Hon'ble Jaspreet Singh,J.
Heard learned counsel for the petitioner and learned standing counsel for the respondents.
In pursuance of the earlier order passed by this Court on 23.01.2023, the learned standing counsel has informed that the instructions has been received and a copy thereof has been provided to the Court, which is taken on record.
With the consent of learned counsel for the contesting parties, the instant writ petition is being finally disposed of.
Briefly, the facts of the case are that initially, the petitioner was appointed on 18.06.1980 on the post of Lekhpal against regular sanctioned post and after attaining the age of superannuation, he retired on 30.11.2016.
It is submitted that after the retirement of the petitioner, the pension of the petitioner has been fixed, but the amount of gratuity and GPF has been withheld by the respondents. However, by means of the impugned order dated 01.06.2018, whereby it has been mentioned that the petitioner has received an additional payment to the tune of Rs.6,15,359/-.
It is pointed out that the petitioner sought information under the RTI Act, 2005 through applications dated 24.12.2019, 29.02.2020 and 22.02.2022. Since, no information was given within the statutory period of 30 days, therefore, the petitioner preferred an appeal before the Sub-Divisional Officer, Anwala, District Bareilly on 12.04.2022. It is urged that even after filing of the appeal, no information was provided to the petitioner, hence, the petitioner preferred second appeal under Section 19 of the RTI Act, 2005 and on 27.04.2022, the information as sought by the petitioner was provided along with Audit Inspection Notice dated 07.03.2011 and a letter dated 01.06.2018. It is also urged that in the notice dated 07.03.2011, it was mentioned that 8 adverse entry have been awarded to the petitioner during his entire period of service, therefore, the petitioner was not entitled for the promotion, but he was granted first and second promotional pay-scales, therefore, the surplus amount paid to the petitioner is recoverable.
It is urged that the adverse entry given in the year 1994-95 was set aside vide order dated 17.08.1994 passed by the Sub-Divisional Officer, Meerganj, District Bareilly. The adverse entry regarding the year 1995-96 was also set aside vide order dated 03.01.1996 passed by the Sub-Divisional Officer, Meerganj, District Bareilly.
It is submitted that the respondents passed the impugned order dated 01.06.2018 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 01.06.2018 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.
Writ petition is accordingly disposed of.
Order Date :- 7.2.2023
Rakesh/-
