Court No. - 36
Case :- WRIT - A No. - 12752 of 2021 Petitioner :- Jai Ram Rai Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shailesh Kumar Tripathi Counsel for Respondent :- C.S.C.,Jai Bahadur Singh
Hon'ble Neeraj Tiwari,J.
Issue raised in the present writ petition has already been determined by this Court in Writ Petition No. 1173 of 2017 (Madan Mohan Tiwari Vs. State of U.P. and others) vide following orders passed on 5.12.2018:-
"Heard learned counsel for the petitioner and learned Standing Counsel.
This petition has challenged orders dated 17.06.2015, 24.07.2015 and 17.08.2015 pursuant to which the respondents have effected revision in the pay scale of the petitioner by holding that fixation of pay w.e.f. 01.05.2003 was erroneous. The orders also effect recovery of Rs. 457186/- from the petitioner. These orders appear to have passed just on the verge of retirement of the petitioner who superannuated on 30.09.2015.
Learned counsel for the petitioner on instructions states that the petitioner restricts his challenge only to the extent of recovery which are being effected and that he would have no objection to the computation of his retiral benefits as well as pension as per the order dated 24.07.2015.
The principles which govern the recovery of excess payments made to a Government servant has been elaborately dealt with by the Supreme Court in the case of State of Punjab Vs. Rafiq Masih (2014) 8 SCC 883, wherein following principles were ultimately culled out :-
"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."
It is evident from the material on record that there is no allegation that the petitioner had mis-represented facts on the basis of which the pay came to be fixed in 2003. There is also no allegation against the petitioner of having concealed material facts or induced the respondents to wrongly fix the pay. The petitioner was a Class III employee and is thus clearly covered by the principles enunciated in State of Punjab Vs. Rafiq Masih (supra). Consequently the deductions which are made are rendered unsustainable.
Having regard to the aforesaid, this writ petition is allowed to the extent that the recovery for a sum of Rs. 457186/- shall stand quashed. The said sums shall either be refunded to the petitioner or if already deposited shall be given the benefit of while computing the retiral dues which shall now be released in favour of the petitioner.
In terms of the statement of the petitioner, recorded above, the pensionary and retiral benefits shall be computed as per the order dated 24.07.2015 except for the deductions referred to above which have already been set aside.
The respondents shall endeavour to conclude the exercise of computation and release of benefits with expedition and preferably within a period of three months from the date of presentation of a certified copy of this order."
Since the counsel for the respondents agree that the controversy is identical, as such, for the reasons recorded in the aforesaid order, the writ petition stands allowed. The orders impugned dated 27.06.2020, 24.06.2020/17.08.2020 are quashed in so far as it directs recovery from the petitioner. The retiral benefits of the petitioner would be re-determined as per the corrected pay scale.
Order Date :- 23.9.2021 Rmk.