Allahabad High Court
Harveer Singh vs State Of U.P. And 3 Others on 2 May, 2023
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 38
Case :- WRIT - A No. - 7606 of 2023
Petitioner :- Harveer Singh
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Hari Narayan Singh
Counsel for Respondent :- C.S.C.
Hon'ble Saurabh Srivastava,J.
1. Heard Sri Hari Narayan Singh, learned counsel for the petitioner and Sri Prakash Chandra, learned Standing counsel for the State respondents.
2. Present petition has been filed for the following reliefs:
"(i) Issue, a writ, order or direction, in the nature of certiorari, quashing the order dated 12.01.2023, passed by the respondent no.2 (Annexure No.4 to this Writ Petition).
(ii) Issue, a writ, order or direction, in the nature of direct the concerning respondents to refund Rs.4,62,657/- to the petitioner forthwith and further be pleased to command the respondents to fix and pay the pension and other retiral benefits to the petitioner taking into account his last salary Rs.62,200/- in accordance with law and also be pleased to direct the respondents to release the arrears of pension and other retiral benefits to the petitioner with interest within stipulated period as fixed by this Hon'ble Court."
3. It is the case of the petitioner that he was initially appointed on the post of Constable in the U.P. Police on 15.05.1982 and he retired from the post of Sub Inspector 30.06.2022 after attaining the age of superannuation.
4. The responding authority refixed the last pay of the petitioner from Rs.62,200/- to Rs.58,000/- which is apparent from the order passed in the month of September 2022 by the respondent no.2. Being aggrieved with the aforesaid, the petitioner represented before the respondent nos.2 and 3 for redressal of his grievance. Without considering the representations as preferred by the petitioner, the respondent no.2 vide order dated 15.12.2022 has deducted Rs.85,638/- from the gratuity of the petitioner, thereafter the respondent no.2 vide order dated 12.01.2023 deducted the amount to the tune of Rs.4,62,657/- from the gratuity and leave encashment of the petitioner.
5. The respondent no.2 after taking cognizance over the representations of the petitioner, vide letter dated 23.01.2023 requested the respondent no.4 to refix the salary of the petitioner.
6. Learned counsel for the petitioner submits that the aforesaid order of the respondent authority is in violation of principles of natural justice as no notice or opportunity of hearing was ever afforded to the petitioner and it is also well settled that amount once paid cannot be recovered unless the same was obtained by playing fraud, concealment or misrepresentation. He also relied upon the judgements passed by Hon'ble Apex Court as well as this Court in Syed Abdul Qadir & others Vs. State of Bihar and others [(2009) 3 SCC 475], State of Punjab and others Vs. Rafiq Masih: [2015 (4) SCC 334], Thomas Daniel Vs. State of Kerala and others [Live Law (SC) 438) and Brijendra Kumar Tripathi and others Vs. State of U.P. and others [2019 (4) ADJ 690 (LB)].
7. Learned Standing counsel vehemently opposed the submission, but could not dispute the facts so argued by the learned counsel for the petitioner as well as legal submission.
8. I have considered the rival submissions advanced by the learned counsel for the parties and perused the record as well as impugned order. Facts of the case are undisputed. Hon'ble Apex Court in the case of Rafiq Masih (supra) while dealing with such dispute, had framed following 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."
9. Case of the petitioner is squarely covered with the judgment of Rafiq Masih (supra) and as such, the petitioner is not responsible for receiving excess payment as alleged by the respondents.
10. In view of the aforementioned facts and circumstances, the impugned order dated 12.01.2023 passed by the respondent no.2 is hereby quashed and set aside. The amount to the tune of Rs.4,62,657/- which has been deducted from the post retiral benefits of the petitioner, shall be refunded within a period of two months from the date of production of a certified copy of this order before him. It is also directed to the authority concerned to fix and pay the other retiral benefits to the petitioner taking into account his last salary drawn by him as Rs.62,200/- without loss of time.
11. The writ petition stands allowed accordingly.
Order Date :- 2.5.2023
Vivek Kr.
