Allahabad High Court
Dr. Narendra Kumar Dixit vs State Of U.P. Thru. Addl. Chief ... on 27 January, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 4
Case :- WRIT - A No. - 736 of 2023
Petitioner :- Dr. Narendra Kumar Dixit
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Ayush, Govt U.P. Civil Sectt. Lko. And 4 Others
Counsel for Petitioner :- Vinod Kumar Shukla,Anupama Bhadauria,Rakesh Singh
Counsel for Respondent :- C.S.C.
Hon'ble Vivek Chaudhary,J.
Heard learned counsel for petitioner and learned Standing Counsel for the State.
Petitioner has approached this Court challenging the orders dated 6.6.2022 and 12.9.2022 passed by respondent nos.3 and 4 respectively and the order dated 20.12.2022 passed by respondent no.5, whereby an amount of Rs.4,14,430/- has been withheld from the total amount of gratuity of the petitioner.
Learned counsel for the petitioner submits that though the petitioner is a Class-II employee, but his case is covered by Condition (ii) of Para 18 of the judgment of 'State of Punjab and others Vs. Rafiq Masih (White Washer) and others, 2015 (4) SCC 334'. He further submits that the orders passed are ex parte to the petitioner without giving any opportunity of hearing to him and are only passed on the allegation that the salary was wrongly enhanced and paid to the petitioner.
Learned counsel for petitioner also submits that there is no misrepresentation or fraud on the part of the petitioner rather the same has been voluntarily in a mala fide manner paid by the employer, so keeping in view the aforementioned facts, the same cannot be recovered from petitioner. He further submits that even before passing the impugned order, no opportunity of hearing was given to the petitioner. The law in this regard is already settled by Hon'ble Apex Court in the case of Rafiq Masih (supra), paragraph-18 of which provides:-
"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."
Learned Standing Counsel from the records and impugned orders could not dispute the fact that the impugned orders are ex-parte orders and that the same appear to be hit by the judgment of Rafiq Masih case (supra).
Having heard learned counsel for the parties and having perused the material available on record, I am of the opinion that in view of the dictum of the Hon'ble Apex Court in re; Rafiq Masih (supra), the impugned orders dated 6.6.2022, 12.9.2022 and 20.12.2022 are patently illegal, arbitrary and uncalled for, therefore, the same are hereby set aside/quashed.
Since such recovery is not tenable in the eyes of law, therefore, if any amount is deducted, the same shall be paid to the petitioner. However, in case petitioner falls within the exception of Rafiq Masih case (supra), the respondents shall pass fresh order only after giving a notice and proper opportunity of hearing to the petitioner. Such a notice may be given by the respondents, if so required, to the petitioner within a period of one month from the date of production of a certified copy of this order and the entire process shall also be completed within a further period of two months from the date of issuance of notice. In case such a notice is not issued to the petitioner within one month, respondents shall also pay the amount already deducted from the petitioner under the impugned orders.
Learned counsel for the petitioner also submits that GPF amount of the petitioner is also not paid. He seeks liberty to make a representation in this regard.
The petitioner may make a representation in this regard before respondent no.1-Additional Chief Secretary, Department of Ayush, Government of U.P., Civil Secretariat, Lucknow. If such a representation is made, respondent no.1 shall consider the same and take a final decision thereon within a period of one month from the date, a certified copy of this order along with representation is placed before him.
With the aforesaid, the writ petition is allowed.
.
[Vivek Chaudhary,J.]
Order Date :- 27.1.2023
Sachin
