Union Of India Thru. General ... vs Sri Krishna Sharma
2023 Latest Caselaw 18663 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:48244-DB
 
Court No. - 1
 

 
Case :- WRIT - A No. - 5213 of 2023
 

 
Petitioner :- Union Of India Thru. General Manager Northern Railway, New Delhi And Others
 
Respondent :- Sri Krishna Sharma
 
Counsel for Petitioner :- Deepanshu Dass,Sr. Advocate
 
Counsel for Respondent :- Praveen Kumar
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Om Prakash Shukla,J.

(1) Heard Shri S. B. Pandey, learned Senior Advocate and Deputy Solicitor General of India, assisted by Shri Deepanshu Dass for the petitioners and Shri Praveen Kumar, learned counsel representing the opposite party-claimant.

(2) Proceedings of this petition have been instituted invoking our jurisdiction under Article 226 of the Constitution of India assailing the validity of the judgment and order dated 05.08.2022 whereby Original Application bearing no.486 of 2018 filed by the opposite party-claimant has been allowed and recovery sought to be effected against him after his retirement by means of the letter/order dated 13.09.2018, has been quashed.

(3) Submission of the learned Senior Advocate representing the petitioners is that the learned Tribunal while quashing the recovery against the opposite party-claimant has erred in law inasmuch as that reliance placed by the Tribunal on the judgment of Hon'ble Supreme Court in the case of State of Punjab & Others v. Rafiq Masih (White Washer), [(2015) 4 SCC 334] is misplaced for the reason that the said judgment is primarily applicable in the case of excess payment to the employees who belong to Class III and Class IV, whereas the opposite party-claimant belongs to Group-A service. His further submission is that the opposite party-claimant was a Class-A Officer and as such it cannot be said that he was not aware of the wrong fixation of his pay and accordingly he ought to have pointed it out to the concerned department and therefore the Tribunal has erred in law in not considering the said aspect of the matter while quashing the order of recovery.

(4) On the other hand, Sri Praveen Kumar, learned counsel representing the opposite party-claimant has vehemently argued that the facts of the present case clearly establish that the claim of the opposite party-claimant was covered by the law laid down by Hon'ble Supreme Court in the case of Rafiq Masih (supra). He has also stated that the judgment in the case of Rafiq Masih (supra) is not confined to Class III and Class IV employees; rather, it applied to employee in general. He has also argued that in terms of the conclusion drawn by the Hon'ble Supreme Court in paragraph 18 of the judgment in the case of Rafiq Masih (supra), at point Nos.(ii) and (iii), recovery which was sought to be made from the amount of death-cum-retirement gratuity from the opposite party-claimant was unjustified.

(5) We have considered the rival submissions made by the learned counsel representing the respective parties and we have also perused the records available before us.

(6) The opposite party-claimant was initially appointed as an Apprentice (Mechanical) with the Railways in the year 1980 and thereafter scaling the ladder of departmental promotions, was ultimately promoted to a Group 'A' w.e.f. 25.03.2008. On his promotion to Group 'A' post w.e.f. 25.03.2008, his pay was fixed and accordingly, he has drawn the said pay along with other perquisites and increments etc. till he attained the age of superannuation on 31.08.2018. After his retirement, a letter/order giving details of the deduction to be made from the post retirement dues of the opposite party-claimant was intimated to him. The said letter/details is available at page - 38 of the writ petition, according to which after his retirement, recovery of a sum of Rs.2,00,000/- was ordered to be made from the death-cum-retirement gratuity of the opposite party-claimant. He represented the authorities against the said recovery. However, since the representations did not yield any result, he instituted the proceedings of Original Application No. 486 of 2018 which has been allowed by the Central Administrative Tribunal, Lucknow Bench, Lucknow placing reliance on the law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (supra) and specifically returning a finding that the case of the opposite party-claimant is covered by conclusion Nos. (ii) and (iii) of the said judgment.

(7) So far as the amount of deduction from salary/pay and other pre or post-retirement benefits are concerned, the law has been settled by Hon'ble Supreme Court in the case of Rafiq Masih (supra). In the said case, Hon'ble Supreme Court has drawn following five conclusions:-

"(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."

(8) Hon'ble Supreme Court in a subsequent case of High Court of Punjab and Haryana & others v. Jagdev Singh, [2016 SCC Online SC 748] has referred to the judgment of Rafiq Masih (supra) and has also carved out an exception where recovery can be made, according to which in case at the time of fixation of pay or fixation of any amount, the employee concerned had given an undertaking that in case such fixation is found in excess, he shall return the excess amount and also in case pay fixation was result of any misrepresentation or submission of wrong facts, recovery can be ordered.

(9) In the light of the aforesaid principles, the matter has been examined by the Tribunal wherein it has been noticed that though the opposite party-claimant was not a Class III or Class IV employee but he shall be covered by the conclusion Nos. (ii) and (iii) according to which recovery from retired employee (irrespective of the status to which such an employee belongs) cannot be made. The Tribunal has also arrived at a conclusion that recovery from any class of employees cannot be made when excess payment is said to have been made for a period in excess of five years before the order of recovery is issued.

(10) The submission of the learned counsel for the petitioners that since the opposite party-claimant was not a Group -C or Group - D employee, as such the law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (supra) will have no application in this case, is apparently not acceptable for the reason that the law declared by Hon'ble Supreme Court in the said case is applicable to all classes of employees. In case of Class III and Class IV employees, the law laid down by Hon'ble Supreme Court is that recovery can not be made irrespective of the fact whether such employee has retired or not. However, in case of a Group 'B' or Group 'A' employee, recovery is forbidden only in case such employee has retired and that distinction we ought to bear in mind.

(11) It is also to be noticed that alleged excess pay fixation in the present case was made in the year 2008 and the order of recovery has been passed after the retirement of opposite party-claimant on 13.09.2018, i.e., after ten years.

(12) It is not a case of the petitioners that the opposite party-claimant had given an undertaking in terms of the judgment as discussed in the judgment of Jagdev Singh (supra), nor is it a case where petitioners plead that fixation of pay was based on any misrepresentation made by the opposite party-claimant.

(13) In the aforesaid fact situation, we are of the considered opinion that the judgment rendered by Hon'ble Supreme Court in the case of Rafiq Masih (supra) will apply with its full force.

(14) Accordingly, we do not see any good ground to interfere in the order passed by the learned Tribunal.

(15) The writ petition being devoid of merit is hereby dismissed.

(16) However, there will be no order as to costs.

Order Date :- 24.7.2023

akhilesh/