Court No. - 58
Case :- WRIT - A No. - 18046 of 2018 Petitioner :- Chandrika Prasad Pal Respondent :- State Of U.P. 3 Others Counsel for Petitioner :- Ashok Pandey,Srestha Pandey Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioner was a Platoon Commander and retired, as such, on 31.10.2016. Petitioner is aggrieved by an order dated 19.06.2018, which records that Homeguards Headquarters has found petitioner's pay fixation order dated 29.05.2015 to be defective and consequently, a sum of Rs. 1,17,415/- has been paid in excess of the petitioner's entitlement. A direction has been issued to the petitioner to deposit such amount; otherwise, it would be adjusted from the amount of gratuity payable to the petitioner. The order is challenged on the ground that no opportunity of hearing has been given tot he petitioner and that such recovery is, otherwise, in teeth of law laid down by the Apex Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 332. Reliance is placed upon the observations of the Apex Court contained in paragraph no. 12 of the judgment, which reads as under:-
"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."
Learned standing counsel submits that the authority concerned be permitted to revisit the issue.
In the facts and circumstances of the case, noticed above, this Court finds substance in the grievance of the petitioner that recovery, as is proposed to be made from the petitioner's retiral dues, would be wholly impermissible; in as much as, neither any opportunity of hearing has been offered to the petitioner, nor the principles of law laid down by the Apex Court has been taken note of. It is, otherwise, not the case of the respondents that any misrepresentation was made by the petitioner. Consequently, the respondents would not be justified in affecting any recovery from the petitioner pursuant to the order dated 19.06.2018.
In the facts and circumstances of the case, the order dated 19.06.2018 would be treated as a notice to the petitioner and he shall be at liberty to submit his objection, together with materials which the petitioner intends to rely upon, along with certified copy of this order, within a period of four weeks from today. The authority concerned shall examine the petitioner's grievance, in accordance with law, by passing a reasoned order, within a period of two months, thereafter.
Till a fresh decision is taken, as indicated above, no recovery would be made from the petitioner. The respondents shall also release the withheld retiral dues of the petitioner within a period of four months from today.
Order Date :- 24.8.2018 Amit Mishra