Up Power Transmission Corporation vs State Of Up And Anothers
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Allahabad High Court

Up Power Transmission Corporation vs State Of Up And Anothers on 21 May, 2025

Author: Ashwani Kumar Mishra

Bench: Ashwani Kumar Mishra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:85877-DB
 
Court No. - 29
 

 
Case :- WRIT - A No. - 856 of 2024
 

 
Petitioner :- Up Power Transmission Corporation
 
Respondent :- State Of Up And Anothers
 
Counsel for Petitioner :- Pankaj Kumar Shukla
 
Counsel for Respondent :- Ashish Srivastava,C.S.C.
 

 
Hon'ble Ashwani Kumar Mishra,J.
 

Hon'ble Praveen Kumar Giri,J.

Ref: Civil Misc. Restoration Application No.4 of 2024

1. This application has been filed seeking recall of the order dated 22.11.2024 whereby the writ petition was dismissed for want of prosecution.

2. Cause shown for absence on the aforesaid date has been explained to the satisfaction of the Court.

3. The application is allowed.

4. The order dated 22.11.2024 is hereby recalled.

5. The petition is restored to its original number.

Order on Writ Petition

1. This petition is filed by the employer, U.P. Power Transmission Corporation, challenging an order passed by the U.P. Public Services Tribunal, whereby the claim petition filed by the respondent No.2 is allowed vide judgment and order dated 16.08.2023.

2. The claimant-respondent was an Office Assistant-2 in the petitioner-corporation. He superannuated on 31.05.2011. The pension of the respondent was fixed on a provisional basis on 01.06.2011. It appears that the Zonal Account Officer raised an objection with regard to his pay fixation. As per the report of the Zonal Account Officer, the salary of the respondent-employee was incorrectly fixed at Rs. 1850/- on 11.08.1986 in place of his entitlement to be placed in the pay-scale of Rs.1700/-. A show cause notice was issued to the respondent-employee and thereafter his pension was revised on 29.01.2016 and a direction was issued to recover Rs. 3,12.702/- allegedly paid extra to the respondent-employee. It is this order of the employer dated 29.01.2016 which has been interfered with by the Tribunal. For coming to such calculation, the Tribunal has held that the pay fixation of the employee from 11.08.1986 was not due to any fraud or misrepresentation on his part and for any error in fixation of pay on the part of the employer, it would not be open for the employer to recover such amount, particularly after his retirement. Reliance is placed by the Tribunal upon the judgment of the hon'ble Supreme Court in Civil Appeal No.11527 of 2014 (Arising out of SLP(C) No. 11684 of 2012) State of Punjab and others etc. vs. Rafiq Masih (White Washer) etc.

3. Learned counsel for the petitioner submits that the Tribunal has erred in placing reliance upon the Government Order dated 16.01.2007, as per which, issues relating to fixation of pension etc. are required to be determined during the service period of the employee and that such exercise ordinarily would not be undertaken much after the retirement. According to the counsel for the petitioner this Government Order has not been adopted by the petitioner and, therefore, placing reliance upon it for passing the order impugned renders the judgment of Tribunal invalid.

4. Learned counsel for the respondent-employee, on the other hand, contends that since the pay fixation was made in the year 1986 by the employer, without any fraud or misrepresentation on the part of the employee concerned, it would not be open for the employer to recover such alleged excess sum much after the retirement.

5. We have heard counsel for the parties and have perused the materials on record.

6. Law with regard to recovery to be made from the employees falling in Class-III and Class-IV categories has been examined by the hon'ble Supreme Court in the case of Rafiq Masih (White Washer) etc. (supra). Hon'ble Supreme Court has laid down the principles in respect of such recovery vide observations made in Paragraph 12 of the judgment, which is reproduced hereinunder:

"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, summaries 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."

7. The law laid down by the hon'ble Supreme Court in Rafiq Masih (White Washer) etc. (supra) has been reiterated in the recent judgment of the Supreme Court in Jogeswar Sahoo and others vs. The District Judge Cuttack and others; 2025 INSC 449.

8. Learned counsel for the petitioner, however, submits that the future retiral benefits admissible to the employee would have to be as per his correct entitlement, and that the Government Order dated 16.01.2007 is not applicable in the facts of the present case.

9. Even though Government Order dated 16.01.2007 may not strictly be applicable upon the Corporation, yet issues relating to fixation of salary etc. cannot be allowed to be reopened after several decades. In this case, the salary of the employee was fixed on 11.08.1986. Nothing is shown by the petitioner which may indicate that the employee's salary was wrongly fixed at Rs. 1850/-. The petitioner has essentially relied upon the objection of the Zonal Account Officer, as per which his correct salary was Rs. 1700/-. The Tribunal has also found that on this aspect, no opportunity of hearing has been given to the employee concerned. No reasons are otherwise indicated as to why the salary payable to the employee is Rs. 1700/- and not Rs. 1850/-.

10. On the aspect of future entitlement of the respondent-employee to receive pension and other benefits, we do not find conscious determination of the issue at the level of the petitioner-employer. No opportunity of hearing has otherwise been given to the employee concerned. In such circumstances, we are of the view that it would be appropriate to permit the employer to furnish material within six weeks to the respondent on the strength of which, the employer claims that the salary payable to him as on 11.08.1986 would be Rs. 1700/- and not Rs. 1850/-. The respondent/petitioner will be at liberty to submit a reply within four weeks to such material. The employer would be able to pass a fresh order within a period of four weeks thereafter in respect of future entitlement of pension and other benefits to the employee concerned.

11. We make it clear that neither any recovery would be made from the respondent-employee of the amounts already paid nor would any of the amount allegedly paid in excess shall be adjusted from the future dues of the employee.

12. Subject to the above modification in the order of the Tribunal, this petition is disposed of.

Order Date :- 21.5.2025

K.Tiwari