Punjab-Haryana High Court
Kamlesh Sehrawat vs Haryana State Warehousingh ... on 6 November, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:147849
CWP-8837-2023 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP-8837-2023 (O&M)
Date of Decision:06.11.2024
Kamlesh Sehrawat ......Petitioner
Versus
Haryana State Warehousing Corporation
......Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Mr. Deepak Sonak, Advocate for the petitioner.
Mr. Dhananjay Mittal, Advocate for respondent.
*****
JASGURPREET SINGH PURI J.(Oral)
1. The present petition has been filed under Articles 226/227 of the
Constitution of India seeking issuance of a writ in the nature of Certiorari
for setting aside the impugned orders dated 22.12.2022 (Annexure P-10)
and 14.08.2019 (Annexure P-7) whereby the case of the petitioner for
release of the withheld Gratuity amount of Rs. 1,49,347/- has been rejected.
2. Learned counsel for the petitioner submitted that the petitioner
was working as an Accounts Clerk in the office of respondent-Corporation
and she retired on 30.09.2008 upon attaining the age of superannuation.
He submitted that while the petitioner was in service, the respondent while
fixing the payscale of the petitioner alongwith other similarly situated
persons had granted certain benefits to the petitioner in the year 1981.
However, the aforesaid grant of benefit which was given to the petitioner
and other similarly situated persons was subsequently rectified and was
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CWP-8837-2023 (O&M) 2
withdrawn. It was after the retirement of the petitioner on 30.09.2008 an
amount of Rs.1,49,347/- was deducted from the gratuity of the petitioner.
He submitted that it is a well settled law that once an employee has retired
from service, no such amount can be recovered from the pension or
gratuity of an employee because it is not only violation of the law laid
down by Hon'ble Supreme Court but also violation of the Right to
Property under Article 300-A of the Constitution of India. He also asserted
that the post of Accounts Clerk falls under Category C and in this regard he
referred to the judgment of Hon'ble Supreme Court in State of Punjab v.
Rafiq Masih (White Washer etc.) (2015) 4 SCC 334. He submitted that
the recovery made from the gratuity of the petitioner is absolutely
unsustainable and contrary to the aforesaid judgment of Hon'ble Supreme
Court.
3. On the other hand, learned counsel appearing on behalf of
respondent submitted that so far as proposition of law which has been so
laid down by Hon'ble Supreme Court is concerned, the same is not disputed
and the same will be applicable to the present case. He submitted that the
petitioner cannot claim parity with respect to the other judgments vide
Annexures P-2 and P-3 as the petitioner was not a party to the aforesaid
writ petitions.
4. I have heard learned counsels for the parties.
5. The objection raised by learned counsel for the respondent that
the petitioner was not a party to the aforesaid judgments passed by this
Court filed by similarly situated persons vide Anneures P-2 and P-3 is
concerned, the same is unsustainable as it is not necessary that the
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petitioner ought to have been a party in the aforesaid petitions because the
petitioner is standing on his own feet by alleging that no recovery could
have been effected from the gratuity of the petitioner after retirement for
the amount which was given by the respondent-Corporation itself on the
basis of grant of some pay-scale and it was not a case of any fraud
committed by the petitioner. The petitioner was a Class-C employee. The
concluding part of the judgment of Hon'ble Supreme Court in the case of
State of Punjab Vs. Rafiq Masih's case (supra) 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 hereinabove, 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 ClassIV service (or Group C and Group
D service).
(ii) Recovery from the 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.
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(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."
6. After hearing learned counsel for the parties and in light of the
conclusions drawn by Hon'ble Supreme Court in Rafiq Masih's case
(supra), the case of the petitioner is squarely covered by the judgment of
Hon'ble Supreme Court. The petitioner was a Category-C employee and it
is not a case where the petitioner had made any fraud or misappropriation.
7. In view of the aforesaid facts and circumstances, the present
petition is allowed. The respondent is directed to refund to the petitioner
the aforesaid amount of Rs.1,49,347/- alongwith interest @ 6% per annum
(Simple) which shall be calculated from the date of retirement plus two
months till the date of payment to the petitioner within a period of three
months from today.
8. In case the aforesaid amount is not paid to the petitioner within
the aforesaid stipulated time frame then the petitioner shall be entitled for
future rate of interest @9% (simple) per annum.
9. The petitioner shall also be entitled for costs of Rs.10,000/-
which shall also be paid to the petitioner within the aforesaid time frame.
(JASGURPREET SINGH PURI)
JUDGE
06.11.2024
shweta Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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