Shitala Prasad Pandey vs State Of U.P. Through Prin. Secy. ...
2023 Latest Caselaw 2290 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 20
 

 
Case :- WRIT - A No. - 5105 of 2015
 

 
Petitioner :- Shitala Prasad Pandey
 
Respondent :- State Of U.P. Through Prin. Secy. Irrigation Deptt. Lko. And O
 
Counsel for Petitioner :- Vinod Kumar Singh Ii,Krishna Pratap Singh,Vikas Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Brij Raj Singh,J.

Heard learned counsel for the parties.

By means of present writ petition the petitioner has sought the following main reliefs:-

"1. Issue a writ, order or direction in the nature of certiorari quashing the letter/order dated 22.07.2015 passed by the Opp. Party No.4 contained in Annexure No.1 of this writ petition reducing salary and proposing recovery as excess amount.

2. Issue a writ, order or direction in the nature of mandamus commanding the Opp. Parties not to reduce the Grade Pay of the petitioner.

3. Issue a writ, order or direction in the nature of mandamus commanding to the Opp. Parties not to reduce the Grade Pay of the petitioner and not recover the said excess amount has been paid due to 3 steps up gradation of the petitioner's salary."

It transpires from the pleadings on record that the present matter relates to recovery of certain amount from the petitioner was paid excess amount and was holding Class III post i.e. Surveyer.

It is also not in dispute that vide order dated 31.08.2010 the salary of the petitioner was fixed and thereafter, the amount i.e. Rs. 2,11,886/- was paid to the petitioner and neither the petitioner misrepresented before the authority concerned nor played fraud and impugned order dated 22.07.2015 was passed after about five years from order of fixation of pay dated 31.08.2010 that too without providing any opportunity of hearing.

It is also not in dispute that as per order of re-fixation of pay dated 22.07.2015 the pay indicated therein was provided to the petitioner and accordingly after retirement the PPO was prepared however till date entire post retiral dues have not been paid as Rs.2,11,886/- has been withheld.

Learned counsel for the petitioner has submitted that during the pendency of the present petition, the petitioner has retired on 31.3.2017 and after his retirement, the pensionary benefits have been paid to him but the amount of Rs.2,11,886/- has been withheld on the ground that the recovery order was issued which is under challenged before this Court.

The petitioner at the time of receiving the amount was holding Class III post i.e. the post of Surveyer and retired as Class III employee on 31.03.2017 is also not in dispute.

The amount Rs.2,11,886/-, as per the opposite parties was paid in excess to the amount required to be paid to the petitioner.

It is stated by the learned counsel appearing on behalf of the petitioner that the impugned order is unsustainable in view of law laid down by the Hon'ble Apex Court in the judgment dated 02.05.2022 passed in Civil Appeal No. 7115 of 2010 (Thomas Daniel v. State of Kerala & Ors.).

It is further stated that the Hon'ble Apex Court while passing the judgment in the case of Thomas Daniel (supra) considered the earlier judgment(s) on the issue of recovery of excess amount paid to an employee including the judgment passed in the case of High Court of Punjab & Haryana v. Jagdev Singh, (2016) 14 SCC 267:(2017) 2 SCC (L&S) 789. The relevant portion of the same is as under:-

"10. In State of Punjab v. Rafiq Masih [State of Punjab v. Rafiq Masih, (2015) 4 SCC 334 : (2015) 2 SCC (Civ) 608 : (2015) 2 SCC (L&S) 33] this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law: (SCC pp. 334-35)

(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.

(emphasis supplied)

11.The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking."

It would be relevant to point out that vide interim order dated 31.08.2015, the Court protected the rights of the petitioner, which on reproduction reads as under:-

"Heard Sri Vinod Kumar Singh-II, learned counsel for petitioners, learned State counsel and perused the record.

After hearing learned counsel for parties and going through the record as well as taking into consideration the law as laid down by Hon'ble the Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others, 2015 (4) SCC 334 and Col. B.J. Akkara (Retd.) Vs. Government of India and others, 2006 (11) SCC 709, as an interim measure, it is provided that till the next date of listing, no recovery shall be made from the salary of the petitioner in respect to the impugned order under challenge in the present writ petition.

Learned State counsel prays for and is granted four weeks time to file counter affidavit. Two weeks' thereafter is granted to file rejoinder affidavit.

List thereafter."

Coming to the facts of the present case, it is not contended before this Court that on account of misrepresentation or fraud by the petitioner, the excess amount was paid. From the pleadings and documents on record, it appears that re-fixation of pay is justified as vide order dated 31.08.2010 the pay (Rs. 12540/-+4600/-=17140/-) was done as per Enclosure-B of Government Order dated 08.12.2008, which relates to direct recruits whereas the petitioner was initially appointed on the post of Assistant Surveyor and subsequently he was provided the designation of Surveyor and for this reason the pay (Rs.9680/-+4600/-=14280/-) of the petitioner was to be paid as per Enclosure A.

Considering the facts aforesaid and proposition settled by the Hon'ble Apex Court as also the fact that the petitioner was holding a Group-C post at the time of providing the amount in issue has already retired and the order dated 22.07.2015 was passed after about five years from order dated 31.08.2010, this Court is of the view that the recovery of amount in issue from the petitioner is unsustainable and as such, the indulgence is required in the matter.

Accordingly, the present writ petition for the relief related recovery of amount is allowed. The impugned order dated 22.7.2015 contained in Annexure No.1 to the petition, is quashed. The opposite parties are directed to release the amount i.e. Rs.2,11,886/- with simple interest @ 6% per annum to the petitioner within a period of three months from the date of production of certified copy of this order.

Order Date :- 23.1.2023

Rajneesh JR-PS)