Punjab-Haryana High Court
Hafiz Ur Rehman Khan vs State Of Punjab And Others on 20 March, 2024
Neutral Citation No:=2024:PHHC:040554
CWP-1403-2020 (O&M) 2024:PHHC:040554
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
235
CWP-1403-2020 (O&M)
Date of Decision: 20.03.2024
Hafiz Ur Rehman Khan .....Petitioner
Versus
State of Punjab and others .....Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY
Present: Mr. R.S. Sidhu, Advocate for the petitioner.
Mr. Charanpreet Singh, AAG, Punjab.
Mr. Vikram Jeet Singh, Advocate for respondent No. 3.
*****
AMAN CHAUDHARY, J.(ORAL)
1. The present Civil Writ Petition has been filed under Articles
226/227 of the Constitution of India for quashing the impugned order dated
08.07.2014, Annexure P-1.
2. Learned counsel contends that prior to retirement of the petitioner
on 31.07.2014, a recovery was ordered vide impugned letter dated 08.07.2014,
citing incorrect pay fixation on account of an increment having been wrongly
granted with effect from 01.01.1996. Subsequently, Rs. 91,001/- were
recovered on 10.10.2014 and Rs. 16,030/- on 15.12.2014 by the respondents.
Reliance is placed on State of Punjab and others etc. vs. Rafiq Masih, (2015)
4 SCC 334, stating that there was no fraud or misrepresentation committed.
3. On the contrary, learned counsel for the respondents submit that
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since the petitioner had given an undertaking on 03.06.2014 (Annexure R-1),
before he superannuated, that recovery of any excess payment of pension or
gratuity received by him could be made, hence he could not escape the said
deduction, in which regard reliance is placed on High Court of Punjab and
Haryana and others vs. Jagdev Singh, 2016 (14) SCC 267.
4. Heard learned counsel on either side.
5. As is evident that the recovery sought to be made, was on the
premise that an increment was erroneously accorded to the petitioner in the year
of 1996, which besides being on the volition of the Department, it is also
nobody's case that any undertaking was obtained from him prior thereto. The
argument being canvassed on behalf of the respondents by pressing into service
the generalized undertaking that was mandatorily to be submitted by all
employees at the time of retirement, cannot be countenanced, in the wake of
Vinod Kumar vs. The Punjab State Power Corporation Ltd. and others,
CWP-18326-2020, decided on 18.01.2024, wherein the judgment as relied upon
in Jagdev Singh (supra), was distinguished on basis of the aforesaid facts,
which thus covers the case of the petitioner on all fours. Relevant paras thereof
read as under:
"7. It is the case of the petitioner that he had retired as
Lineman on 30.04.2019. After his retirement, an amount of
Rs.3,24,260/- has been recovered from the gratuity of the
petitioner. The plea taken by the respondents is that the
benefit of two promotional increments was wrongly given
on 28.03.1996 and the said mistake has been rectified. As
per reply filed by the respondent-Corporation, the mistake
was detected by the Audit Department and that is why
recovery has been effected. Another argument which has
been advanced by learned counsel for the respondent-
Corporation is that an undertaking was given by the
petitioner at the time of accepting the increment and
retirement and therefore, judgment of Rafiq Masih (White
Washer) and others case (Supra) will not apply.
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8. Both the arguments raised by learned counsel for the
respondent-Corporation are not sustainable. Firstly, even if
an excess amount on the basis of wrong fixation of pay
while granting benefit w.e.f 01.01.1996 was paid to the
petitioner, the same cannot be recovered from him after his
retirement. The action of the respondentCorporation is
totally contrary to the law laid down by the Hon'ble
Supreme Court in Rafiq Masih (White Washer) and others
case (Supra) particularly in view of the fact that the
petitioner retired as Lineman which falls in Class III (Group
'C' Category). The relevant portion of the aforesaid
judgment is reproduced as under:-
"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-
IIIand 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. The facts and circumstances of the present case suggest
that it is not the case of the respondent-Corporation that it
was due to some fraud or misrepresentation of the petitioner
that the said fixation of pay was made during his service but
it was made by the respondent Corporation on their own and
recovery has been effected after the retirement of the
petitioner without issuing any show cause notice to him.
10. So far as the second argument raised by the learned
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counsel for the respondent-Corporation that the petitioner
had furnished an undertakings vide Annexures R-1 and R-2
are concerned, the same are also not sustainable in view of
the fact that one of the undertakings i.e. Annexure R-2 was
given by the petitioner at the time of retirement which is a
stereotyped undertaking and is also generalized in nature.
Undertaking, Annexure R-1, furnished by the petitioner also
do not contain any date which indicates the time period
thereof. Therefore, the furnishing of such an undertaking
would not be of any avail to the respondent-Corporation. In
the case of High Court of Punjab & Haryana and others Vs.
Jagdev Singh : 2016(14) SCC 267, the Hon'ble Supreme
Court was dealing with a particular situation whereby before
granting the benefit of pay-scale to the employees, an
undertaking was taken from the employees with regard to
the fact that in case there is some recovery which is to be
made thereafter, then the employees will have no objection
with regard to the same and in this way, the employees were
already put to notice with regard to a specific benefit which
was to be conferred upon them. However, in the present
case, the petitioner had already retired in the year 2019
whereas the benefit has been granted in the year 1996 and
therefore, the facts and circumstances of the present case are
totally distinguishable from the aforesaid judgment in
Jagdev Singh's case (supra).
11. In view of the above, this Court is of the considered
view that the case of the present petitioner is squarely
covered by the judgment of Hon'ble Supreme Court passed
in Rafiq Masih (White Washer) and others case (Supra) as
the reliance placed upon the undertakings will not be
relevant in present case.
12. Further, the recovery has been ordered by the
respondents in violation of the principle of natural justice as
neither any show cause notice was issued to the petitioner
nor he was granted an opportunity of personal hearing.
13. Consequently, the present petition is allowed and the
impugned order dated 06.02.2020 (Annexure P-12) whereby
recovery has been effected from the petitioner is quashed.
Respondents are directed to refund the amount of
Rs.3,24,260/- of gratuity, as deducted, to the petitioner
within a period of four months from the date of receipt of
certified copy of this order along with interest @ 6% per
annum."
6. On a cumulative consideration of the facts and circumstances of
the present case, in light of the afore-referred judgment, the impugned order is
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liable to be and hereby set aside. As a corollary thereto, the respondents are
directed to refund the amount recovered from the petitioner, along with interest
at the rate of 6% per annum, within a period of three months from the date
when a web-print of this judgment is received.
(AMAN CHAUDHARY)
20.03.2024 JUDGE
Rajeev (rvs)
Whether speaking/reasoned : Yes
Whether reportable : No
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