Allahabad High Court
Surendra Kumar Bajpai vs State Of U.P. And 4 Others on 16 January, 2023
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 19
Case :- WRIT - A No. - 20238 of 2022
Petitioner :- Surendra Kumar Bajpai
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Purushottam Mani Tripathi
Counsel for Respondent :- C.S.C.
Hon'ble Jaspreet Singh,J.
Heard learned counsel for the petitioner and learned counsel for the respondents.
With the consent of learned counsel for the contesting parties, the instant writ petition is being finally disposed of.
Fact of the case is that initially, the petitioner was appointed as Junior Account Clerk in the Office of Project Director Rural Development, Kanpur Dehat. Thereafter, the petitioner was given the benefit of promotional pay-scale as well as second and third A.C.P.
It is submitted that the respondent No.3 forwarded the service book of the petitioner in the office of the respondent No.2 for granting benefits of A.C.P., and the petitioner was promoted as Accountant in the office of the respondent No.3.
After attaining the age of superannuation, by means of the impugned order dated 14.07.2021, certain benefits, which were given to the petitioner in the year 2008 and 2015 respectively, were withdrawn by holding that the said benefits were wrongly given to the petitioner.
Thereafter, the respondent No.3 by means of the impugned order dated 26.11.2021 wherein salary of the petitioner was re-fixed and by means of the impugned order dated 01.01.2022 for recovery of a sum of Rs.3,98,225/- has been issued to the petitioner without providing an opportunity of hearing to the petitioner.
Submission of the learned counsel for the petitioner is that the respondents have recovered a sum of Rs.3.98.225/- adjusting the same from the gratuity admissible to the petitioner which was earlier determined as Rs.10.88.348/-. The said recovery was done by the respondent No.4 by means of the impugned order dated 15.06.2022.
His next submission is that the petitioner is a Class-III 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 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.
In such circumstances, the orders impugned dated 14.07.2021 and 26.11.2021 cannot be sustained and are 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 :- 16.1.2023
Rakesh/-
