Dakkhi Lal vs State Of U.P. And Others
2023 Latest Caselaw 6748 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 

 
Case :- WRIT - A No. - 30980 of 2012
 

 
Petitioner :- Dakkhi Lal
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- Braj Lal,Prem Narayan Tiwari
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Neeraj Tiwari,J.

Supplementary affidavit filed on behalf of petitioner is taken on record.

Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

The present petition has been filed challenging the impugned recovery order dated 08.05.2012.

Learned counsel for petitioner submitted that petitioner was initially appointed on the post of Tubewell Operator w.e.f. 01.04.1982 and he was regularized on 15.12.1992. He further submitted that while working on the post of Tubewell Operator, certain posts of Store Keeper were falling vacant. Assistant Engineer-Vth, Tubewell Division recommended on the basis of his personal knowledge the name of the petitioner as he is having knowledge of store keeping. Subsequently, on the basis of recommendation of Assistant Engineer-Vth, Tubewell Division, the Executive Engineer, Tubewell Division Allahabad, by his letter dated 06.01.1997 also recommended the name of petitioner for appointment on the post of Store Keeper to Superintending Engineer, Irrigation Department Tubewell Circle, Allahabad-respondent no. 5. Accordingly, the petitioner was promoted on the post of Store Keeper vide orders dated 20.10.1998 and 25.11.1992. He next submitted that by the order dated 31.03.2008, orders dated 20.10.1998, 25.11.1998 and 01.06.2002 have been cancelled on the ground that under the Uttar Pradesh Irrigation Department Store Keeper 1985 Rules (hereinafter referred to as 'Rules, 1985'), there is no provision of promotion from Tubewell Operator to Store Keeper. He further submitted that after reversion another impugned order dated 08.05.2012 has been passed.

He next submitted that petitioner has challenged the reversion order dated 31.03.2008 by filing Writ A No. 18767 of 2008 (Dakkhi Lal Vs. State of U.P. And others) which has been dismissed vide order dated 02.03.2023. Even after dismissal of writ petition, no recovery can be made from the petitioner for reasons that while promotion was granted to petitioner on the post of Store Keeper, he has not concealed any fact nor played any fraud or misrepresentation. Therefore, in light of judgments of Apex Court in the matters of Syed Abudl Qadir and Others Vs. State of Bihar and Others 3 (2009) 3 SCC 475, State of Punjab and others Vs. Rafiq Masih: 2015 (4) SCC 334 and Thomas Daniel vs. State of Kerala & Ors.; 2022 LiveLaw (SC) 438, no recovery may be made.

Learned Standing Counsel could not dispute the fact that petitioner has never played any fraud or concealed any fact while he was granted promotion on the post of Store Keeper.

I have considered the rival submissions advanced by the learned counsel for the parties and perused the records, impugned order as well as judgment cited above.

Even after dismissal of Writ-A No. 18767 of 2008 (Dakkhi Lal Vs. State of U.P. And others), it is undisputed that while petitioner was granted promotion, he has neither concealed any fact, nor played any fraud or misrepresentation. It is responsibility of the respondents to grant promotion strictly in accordance with Rules, 1985 from the post of Tubewell Operator to Store Keeper. Respondents are fully responsible as they have overlooked the Rules, 1985 for which petitioner cannot be made responsible. It is also not disputed that petitioner has worked on the post of Store Keeper for 14 years, therefore, the respondents cannot be permitted to recover the amount from petitioner's salary, which has been paid to him, while he was working as Store Keeper.

I have considered the judgments of the Apex Court relied by the learned counsel for the petitioner also.

The very similar issue was before the Apex Court in the matter of Syed Abudl Qadir (Supra). Relevant paragraph of the said judgment is being quoted here:

"59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counteraffidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."

The Apex Court is also of the view that excess payment has been made in result of wrong interpretation of Rule, therefore, no recovery order can be passed.

Again this matter before the Apex Court in the matter of Rafiq Masih (Supra) while dealing with such dispute the Apex Court has framed guidelines:-

"12. 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."

The matter was again referred to Apex Court in the matter of Thomas Daniel (Supra) and Court has taken a very same view. Relevant para is being quoted here:-

"(14) Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General."

The controversy involved in the present petition squarely covered by judgments of Syed Abudl Qadir (Supra), Rafiq Masih (Supra) and Thomas Daniel (Supra) and there is no fraud or misrepresentation on the part of petitioner, therefore, impugned order dated 08.05.2012 is bad and hereby quashed.

Accordingly, the writ petition is allowed.

No order as to costs.

In case any amount has already been recovered, same shall be refunded to the petitioner within four weeks from the date of production of certified copy of this order. In case amount is not refunded within the time given by the Court, respondent concerned is also liable to pay interest @ 6% from the date of recovery to the date of actual payment.

Order Date :- 2.3.2023

Vikram