Allahabad High Court
Phoolchand Yadav vs Managing Director, U.P. Jal Nigam ... on 16 March, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD
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Court No. - 32
Case :- WRIT - A No. - 4450 of 2023
Petitioner :- Phoolchand Yadav
Respondent :- Managing Director, U.P. Jal Nigam (Rural) And 5 Others
Counsel for Petitioner :- Ashutosh Kumar Rai
Counsel for Respondent :- Sanjay Kumar Om
Hon'ble Vivek Chaudhary,J.
Heard learned counsel for petitioner and Sri Pranav Mishra, learned counsel for respondents.
Present writ petition is filed by the petitioner for the following reliefs:-
"i) a writ, order or direction in the nature of Certiorari quashing the impugned order dated 24.01.2023 (Annexure No.-'A-5' to this writ petition) passed by the respondent no.5.
ii) a writ, order or direction in the nature of mandamus directing to the respondents to consider the claim (Re-fixation of salary) of the petitioner providing time pay scale and the promotional pay scale as well as pensionary and retiral benefits.
iii.) a writ, Issue a writ, order or direction in the nature of mandamus directing to the respondents to pay following pension, retiral and other dues of the petitioner with interest of 9% on the delayed payments from the date of his retirement till the date of actual payment forthwith.
a. Gratuity
b. Leave Encashment admittedly amounting as Rs. 13,17,331/-,
c- Arrear of salary (6th pay) w.e.f. 01.01.2006 to 11.03.2010.
d- Salary/pension/retiral benefits providing the actual benefit of the revised pay scales as per the recommendations of the 7th pay commission w.e.f. 01.01.2016,
e. Arrear of D.A. (Dearness Allowances) amounting as Rs.22,622/- ad other dues."
Learned counsel for petitioner has placed grievance to the effect that petitioner, who was working on the post of Assistant Engineer retired from services on 31.07.2022. The petitioner was extended certain benefits during his service tenure by the department itself without any misrepresentation on part of the petitioner. By the impugned order respondents, holding that certain excess salary was paid to the petitioner while in service, have directed for recovery/adjustment of the same from the retiral benefits of the petitioner.
While challenging the impugned order, learned counsel for petitioners submits that the impugned order is an ex-parte order passed without giving any opportunity of hearing to the petitioner. Since, neither any fraud is played by the petitioner nor he has given any undertaking for recovery of salary paid to him by the respondents, no recovery can be made from the petitioner. The law in this regard is well settled by Hon'ble Apex Court in the case of 'State of Punjab and others Vs. Rafiq Masih (White Washer) and others, 2015 (4) SCC 334', 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 counsel for petitioner submits that case of petitioner does not fall within the exception of the said judgment and, hence, being covered by the Rafiq Masih case (supra), the impugned order is liable to be set aside.
Learned Additional Chief Standing Counsel has opposed the petition on merit but could not dispute the aforesaid submission of learned counsel for the petitioner and that the impugned order is passed without giving any opportunity of hearing to petitioner, however, he tried to justify the impugned action.
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) as well as fact that the impugned orders is passed without giving any opportunity of hearing to petitioner, the impugned order dated 24.01.2023 is patently illegal, arbitrary and uncalled for, therefore, the same is hereby set aside/quashed.
In case, respondents believe that case of petitioner falls within the exception of Rafiq Masih case (supra) or that his salary was wrongly paid in excess and need for refixation for future payment is required, they may pass fresh order only after giving a notice and proper opportunity of hearing to petitioner.
Such a notice may be given by respondents, if so required, to the petitioner within a period of six weeks from the date of production of 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 petitioner within six weeks, respondents shall also pay the amount already deducted from the petitioner under the impugned order.
With the aforesaid, present writ petition is allowed.
Order Date :- 16.3.2023
Arti/-
[Vivek Chaudhary,J.]
