Allahabad High Court
Shankar Lal vs State Of U P And 3 Others on 1 March, 2023
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- WRIT - A No. - 21666 of 2022
Petitioner :- Shankar Lal
Respondent :- State Of U P And 3 Others
Counsel for Petitioner :- Arun Kumar Tripathi
Counsel for Respondent :- C.S.C.
Hon'ble Jaspreet Singh,J.
Heard learned counsel for the petitioner and learned standing counsel for the respondents.
In pursuance of the earlier order dated 17.02.2023, learned standing counsel has provided a copy of the written instructions for perusal of the Court, which is taken on record.
With the consent of learned counsel for the contesting parties, the instant writ petition is being finally disposed of.
The facts of the case are that initially, the petitioner was initially appointed on the post of Constable in Civil Police on 01.10.1984 and after attaining the age of superannuation, he retired on 30.06.2021.
It is submitted that the respondent No.3 by means of the impugned order dated 06.09.2021, the salary of the petitioner was revised since 01.10.2018 to 01.07.2020 by which the monthly salary of the petitioner has been decreased in a most illegal manner, which has caused monetary loss to the petitioner.
It is submitted that the petitioner moved an application under the Right to Information Act, 2005 for providing a copy of the order with regard to alleged recovery from the petitioner, whereby it was replied that the petitioner can approach the Superintendent of Police, Lalitpur vide letter dated 11.10.2022. It is further submitted that thereafter the petitioner received a copy of the impugned order dated 28.12.2021 with regard to recovery from leave encashment amounting to Rs.6,29,367/- have been deducted from the post retiral dues of the petitioner.
It is submitted that the respondent No.3 passed the impugned order dated 06.09.2021 after retirement of the petitioner and that too without providing an opportunity of hearing. It is pointed out that due to substantial reduction of pay, the pension as well as other post retiral dues have also been reduced in a most illegal manner by the respondents.
His next submission is that the petitioner is a Group-C 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 any 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 standing counsel appearing for the respondents could not dispute that no opportunity of hearing was granted to the petitioner before passing the impugned orders and thus 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, nor the learned standing counsel has raised any such issue nor it has been indicated in the written instructions which are on record.
In such circumstances, the orders impugned dated 06.09.2021 and 28.12.2021 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 :- 1.3.2023
Rakesh/-
