Allahabad High Court
Indu Sharma vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 24 May, 2024
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:39716
Court No. - 6
Case :- WRIT - A No. - 6014 of 2023
Petitioner :- Indu Sharma
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Vigilance U.P. Lok Bhawan Lko. And 4 Others
Counsel for Petitioner :- Santosh Mishra,Om Prakash Srivastav,Shivendra Pratap Singh
Counsel for Respondent :- C.S.C.
Hon'ble Abdul Moin,J.
1. Heard Sri Manish Kumar Rai, learned counsel for the petitioner as well as learned Standing Counsel for the respondents.
2. By means of present writ petition the petitioner has assailed order dated 08.02.2023, passed by the respondent no. 3 i.e Superintendent of Police (Head Quarter), U.P. Vigilance Establishment, T.C.V 44, Vibhuti Khand, Gomti Nagar, Lucknow, whereby recovery of Rs.1,60,544/- has been directed from the leave encashment of the petitioner for the excess payment made to the petitioner from 05.08.2005 to 01.07.2020.
3. The petitioner who was initially appointed as Class III (Constable) employee, retired from the post of Head Constable, U.P.Vigilance (Establishment), Police Headquarter, Lucknow after attaining age of superannuation on 31.12.2022.
4. It is submitted by learned counsel for the petitioner that said recovery has been ordered on account of the fact that the petitioner was wrongly granted ACP, in pursuance to Government Order dated 13.02.2012. It is submitted that the said enhancement was granted to the petitioner in accordance with the Government Order and there was no infirmity in the same.
5. It is further submitted by learned counsel for the petitioner said recovery has been issued only after superannuation of the petitioner without affording any opportunity of hearing to the petitioner and the amount has been sought to be deducted from the post retiral dues of the petitioner.
6. In support of his submissions counsel for the petitioner has relied upon the judgment of Hon'ble Apex Court in the case of State of Punjab Vs. Rafiq Masih (whitewasher), 2015 (4) SCC 334, where it has been held that recovery in respect of excess payment is impermissible from an employee after his retirement considering the fact that the petitioner was not of fault at the time such pay fixation was done in his favour.
7. Learned Standing Counsel on the other hand on the basis of instructions has opposed the writ petition by submitting that prior to the passing of the recovery order, a consent letter was obtained from the petitioner on 21.03.2023, where the petitioner has agreed for the deduction to be made by the respondents.
8. Learned counsel for the petitioner submits that said affidavit consent letter was filed under compulsion as the petitioner was threatened of stoppage of his pension, in case such an affidavit is not provided.
9. Learned Standing Counsel has relied upon judgment of High Court of Punjab and Haryana Vs. Jagdev Singh (supra), wherein the Hon'ble Supreme Court as observed as under :-
"11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking."
10. The petitioner has submitted that judgment of High Court of Punjab and Haryana Vs. Jagdev Singh (supra) is not applicable to the facts of the present case as the affidavit was given by the petitioner only after her retirement, so that his pensionary dues may be paid. He has relied upon the judment of State of Punjab Vs. Rafiq Masih (whitewasher), 2015 (4) SCC 334. Relevant portion of the judgment is quoted herein below :-
"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."
11. Heard learned counsel for the parties and perused the record.
12. This Court is of the considered view that the recovery sought to be made by the respondents from the petitioner on the ground of wrong fixation of salary, is clearly illegal and arbitrary, and the case of the petitioner is covered by the judgment of the Apex Court in the case of Rafiq Masih (whitewasher) (supra). There is no fault of the petitioner in the said pay fixation nor such allegation has been made by the respondents as per instructions received by the learned Standing Counsel, received from Director, Ayurvedic Services, Lucknow.
13. As regard the judgment of the Apex Court in the case of Jagdev Singh (supra) on the basis of which learned Standing counsel has contended that as a consent letter had been given by the petitioner on 21.03.2023 for deduction to be made by the respondents, the deduction can validly be made, suffice it to say that the said consent letter has been given by the petitioner after her retirement on 31.12.2022 and not before the fixation of her salary which was made on 01.04.2005. Thus, the judgment of the Apex Court in the case of Jagdev Singh (supra) would have not applicability in the facts of the instant case.
14. In view of above, the impugned order dated 08.02.2023, is hereby quashed. The respondents are directed to re-fix pension of the petitioner and pay all the post retiral dues to the petitioner within six months from the date of production of certified copy of this order.
15. The writ petition stands allowed.
Order Date :- 24.5.2024
Pachhere/-
