Himachal Pradesh High Court

Post Office Auhar vs Rafiq Masih (White Washer) And ... on 4 May, 2022

Bench: Ajay Mohan Goel

                                1

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                 ON THE 4th DAY OF MAY, 2022




                                                            .
                            BEFORE





             HON'BLE MR. JUSTICE AJAY MOHAN GOEL
                  CIVIL WRIT PETITION No. 4109 of 2019





     Between:-
     RATTAN    LAL (RTD. A.C.
     OPERATOR) S/O SH. TULSI
     RAM, R/O VILLAGE &




     POST OFFICE AUHAR, TEHSIL
     GHUMARWIN,         DISTRICT
     BILSPUR, H.P.
                                                   ...PETITIONER

     (BY SHRI H.S. RANGRA, ADVOCATE)

     AND

1.   STATE OF H.P. THROUGH THE
     SECRETARY (I & P H), GOVT. OF


     HIMACHAL PRADESH, SHIMLA,
     H.P.
2.   THE           SUPERINTENDING




     ENGINEER, I & P.H. CIRCLE,
     SUNDER NAGAR, DISTRICT
     MANDI, H.P.





3.   THE EXECUTIVE ENGINEER, I.
     & P. H. DIVISION BAGGI, DISTT.
     MANDI, H.P.





4.   THE    SR.       ACCOUNTANT
     GENERAL,       A.G.  OFFICE,
     SHIMLA-3, H.P.

                                            ....RESPONDENTS

     (M/S SUMESH RAJ & DINESH THAKUR &
     SANJEEV SOOD, ADDITIONAL ADVOCATE
     GENERALS, WITH MR. J.S. BAGGA,
     ASSISTANT ADVOCATE GENERAL, FOR R-1
     TO R-3.




                                           ::: Downloaded on - 06/05/2022 20:04:41 :::CIS
                                         2

       MR. LOKENDER THAKUR, SENIOR PANEL
       COUNSEL, FOR R-4).
       Whether approved for reporting? Yes.
__________________________________________________________




                                                                      .
              This petition coming on for hearing this day, the Court passed the





following:
                                   JUDGMENT

By way of this writ petition, the petitioner has, inter alia, prayed

for the following relief:-

"(a) That respondents be directed to release an amount of Rs.2,35,972/- alongwith the interest @ 9% from 1.3.2018 to till its realization as per the latest law of

Apex Court held in State of Punjab Vrs. Rafiq Mohd."

2. The case of the petitioner is that he superannuated from

service of the respondent-Department on 28.02.2018 from the post of A.C.

Operator (Technical Grade-I), which is a Class-III post. His grievance is that

after his superannuation, vide office order dated 19.05.2018 (Annexure

P-3), an amount of Rs.2,35,972/- has been arbitrarily deducted by the

respondent-Department from the retirement gratuity of the petitioner without

any process having been initiated in this regard before his superannuation

on the alleged ground that the deduction was being made for excess pay

released to the petitioner w.e.f. 01.05.2010 up to 28.02.2018.

3. Mr. H.S. Rangra, learned counsel for the petitioner has argued

that while in service, at no stage, any show cause notice was given to the

petitioner by the respondent-Department that as from 01.05.2010 onwards,

he had been made excess payments on account of wrong fixation of pay

and as the impugned order was issued by the respondent-Department after

superannuation of the petitioner, the same per se is not sustainable in the

eyes of law in view of the law laid laid down by the Hon'ble Supreme Court

in State of Punjab and others Vs. Rafiq Masih (White Washer) and others,

(2015) 4 Supreme Court Cases 334. On this count, learned counsel for the

petitioner has prayed that the petition be allowed and office order dated

19.05.2018, to the extent that an amount of Rs.2,35,972/- has been ordered

to be deducted from the retirement gratuity payable to the petitioner, be

quashed and set aside, with a direction to the respondents to pay to the

petitioner the amount which has been illegally deducted from the retirement

gratuity of the petitioner.

4. The petition is opposed by the State, inter alia, on the ground

that office order dated 19.05.2018 suffered from no infirmity for the reason

that it was only after the superannuation of the petitioner that it was

discovered that on account of excess pay released in favour of the petitioner

in between 01.05.2010 up to 28.02.2018, an amount of Rs.2,35,972/- stood

paid to the petitioner and immediately thereafter, steps were taken by the

Department to recover the said amount from the petitioner by way of

deduction thereof from the amount of retirement gratuity.

5. Learned Additional Advocate General has argued that it is not

as if in all cases, after superannuation of an incumbent, no recovery can be

effected from him and by placing reliance on the judgment of the Supreme

Court in High Court of Punjab and Haryana and others Vs. Jagdev Singh,

(2016) 14 Supreme Court Cases 267, he has submitted that even in matters

where a person has superannuated, the employer can effect recoveries.

6. I have heard learned counsel for the parties and also gone

through the pleadings as well as the documents appended therewith and

also the judgments relied upon by learned counsel for the parties.

It is not in dispute that the petitioner superannuated from the

post of A.C. Operator (Technical Grade-I), which is a Class-III post. It is also

not in dispute that before the issuance of Annexure P-3, dated 19.05.2018,

which admittedly was issued after superannuation of the petitioner, at no

stage, the petitioner was apprised by the Department, more so, while the

petitioner was in service that certain excess payments stood made to him

on account of wrong fixation of his pay etc. That being the case, this Court

concurs with the submission made by learned counsel for the petitioner that

the present case is squarely covered by the judgment of the Hon'ble

Supreme Court in Rafiq Masih's case (supra) in para-18 whereof, the

Hon'ble Supreme Court has been pleased to hold that recoveries by

employer would be impermissible in law from the employees belonging to

Class-III and Class-IV service and from retired employees or employees

who are due to retire within one year of the order of recovery. The Court

again emphasizes that in the present case, the recovery has been effected

after the superannuation of the petitioner, who happens to be a Class-III

employee.

8. As far as the judgment being relied upon by learned Additional

Advocate General is concerned, the Hon'ble Supreme Court in paras-9 to

11 thereof was pleased to hold as under:-

"9. The submission of the Respondent, which found favour with the High Court, was that a payment

which has been made in excess cannot be recovered from an employee who has retired from the service of the state. This, in our view, will have no application to a

situation such as the present where an undertaking was

specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be

adjusted. While opting for the benefit of the revised pay scale, the Respondent was clearly on notice of the fact

that a future re-fixation or revision may warrant an

adjustment of the excess payment, if any, made.

10. In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc1. this Court held that while it is not

possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer 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." (emphasis supplied).

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."

9. This Court is of the considered view that the law laid down in

the said case is not applicable in the facts of the present case for the reason

that it is not the case of the respondents herein that the petitioner was

clearly placed on notice before his superannuation at any stage that any

payment found to have been made in excess, would be required to be

refunded. Thus, as the facts of the present case are totally different from the

facts as were there in the matter which was before the Hon'ble Supreme

Court in Jagdev Singh's case (supra), while fully respecting the law laid

down by the Hon'ble Supreme Court in the said judgment, this Court holds

that on facts, said judgment does not covers the present case and the same

Rafiq Masih's case (supra).

r to is squarely covered by the earlier judgment of Hon'ble Supreme Court in