Allahabad High Court
Karan Singh vs State Of U.P. And 3 Others on 14 February, 2023
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 36
Case :- WRIT - A No. - 1082 of 2023
Petitioner :- Karan Singh
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Virendra Singh
Counsel for Respondent :- C.S.C.
Hon'ble Neeraj Tiwari,J.
Heard learned counsel for petitioner and learned standing counsel for State-respondents.
Case was heard on 20.01.2023 and Court has passed the following order:-
"Heard learned counsel for the petitioner, learned standing counsel for the State-respondents.
Learned counsel for the petitioner submitted that petitioner was appointed on the post of Peon, Class IV employee, on 3.10.1979. Petitioner was going to attain the age of 60 years in the month of June, 2012, therefore, respondent No. 4 issued notice dated 7th May, 2012 informing the petitioner that is date of birth mentioned in the office record is 01.07.1952 and he would retire from the service on 30.06.2012. Accordingly, the petitioner was superannuated from the service on 30.06.2012.
After more than 10 years, the petitioner has been issued notice dated 24.9.2022 with allegation that retirement age in the organisation is 58 years and petitioner in spite of knowing this fact, continued to work in the organisation up to the age of 60 years, therefore, as to why recovery shall not be made for the excess payment which has been made to the petitioner for two years extra service. Petitioner replied the same. He submitted that as per notice dated 7th May, 2012, he was superannuated on 30.06.2012 and he is not responsible for two years' extra service. Ignoring the reply of the petitioner, impugned order dated 17.12.2022 of recovery has been passed by the respondent No. 4, which is bad in light of law laid down in by the Apex Court in State of Punjab and others Vs. Rafiq Masih: 2015 (4) SCC 334.
Matter requires consideration.
Learned standing counsel prays for and is granted 10 days time to seek instruction about the matter, failing which, respondent No. 4 shall remain present before the Court on the date fixed.
Put up as fresh on 02.02.2023.
Till then, impugned order dated 17.12.2022 shall remain stayed."
Pursuant to the order dated 20.01.2023, learned standing counsel has produced instruction dated 23.1.2023, which is taken on record. On the basis of instruction, he submitted that under the Government Order, date of retirement of employees is 58 years, therefore, it is required on the part of petitioner to demit the office after attaining the age of superannuation of 58 years, but he could not dispute the legal submission.
I have considered the rival submissions advanced by the learned counsel for the parties and perused the records as well as impugned order. It is undisputed that petitioner was Class-IV employee and he has been served notice of retirement on 7.5.2012 informing him as per date of birth mentioned in the office record, he would retire on 30.6.2012. On the very same day, he also demit the office. It is also undisputed that petitioner was directed by the respondents to perform his duty and for that he was paid salary, therefore, he cannot said to be at fault. In light of judgment of Apex Court in the case of Rafiq Masih (supra) excess salary of two years paid to him cannot be recovered coupled with the fact that he has performed duty for the same period. Further,, While dealing with such dispute, Apex Court had framed following guidelines in the case of Rafiq Masih (supra):-
"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 continuation in service after 58 years and consequently for excess payment.
Therefore, under such facts and circumstances of the case, the impugned order dated 17.12.2022 is hereby quashed and writ petition is allowed. No order as to costs.
Order Date :- 14.2.2023
Junaid
