Court No. - 36
Case :- WRIT - A No. - 18570 of 2019 Petitioner :- Lateef Uddin Respondent :- State of U.P. and Another Counsel for Petitioner :- Fareed Uddin Counsel for Respondent :- C.S.C.
Hon'ble Neeraj Tiwari,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
Present petition has been filed for writ of mandamus directing the respondent no.2 to pay the entire amount of the petitioner along with interest as directed by this Court in Writ Petition No. 16141 of 2001 vide order dated 10.9.2018.
Case was heard on 3.12.2019 and Court has passed the detailed order, which is being quoted hereinbelow:-
"In terms of the order dated 26.11.2019, instruction received by learned Standing Counsel was placed before the Court and the same is taken on record.
From perusal of the record, it appears that the petitioner earlier filed a writ petition being Writ A No.16141 of 2001 (Latif Uddin Vs. Joint Director of Education Varanasi Region & Others). In that writ petition, the petitioner has challenged order dated 09.02.2001 and 21.07.2000 passed by the Joint Director of Education Varanasi Region Varanasi.
It is argued by learned counsel for the petitioner that Joint Director of Education Varanasi Region Varanasi by its order dated 21.07.2000 has reduced the pension of the petitioner at Rs.3713 by forfeiting the encasement of the petitioner as well as the gratuity amount and has directed the Treasury Officer, Jaunpur to adjust/recover the amount of Rs.59947.30/- from the pension and other post retiral benefits of the petitioner.
After considering the arguments raised by the counsel for the parties, it was held by the Co-ordinate Bench of this Court that the law laid down by the Supreme Court in the case of State of Punjab and Others Etc. Vs. Rafiq Mashi reported in 2015 (5) SCC 334 is fully applicable upon the facts and circumstances of the present case and following the ratio of the aforesaid judgement, the writ petition filed by the petitioner was allowed and the matter was remanded back to the respondent No.2 to pass appropriate orders. While passing the aforesaid order, paragraph 12 of the judgment of Rafiq Mashi (supra) was also taken into consideration which is reproduced below:-
"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, summarize 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."
Pursuant to the same, a decision has been taken by the respondent No.2 on 9.4.2019 rejecting the claim set up by the petitioner. Findings were duly recorded by the respondent No.2 in the order impugned that since the petitioner neither class III nor Class IV employee, as such the case is not covered by the judgment of Rafiq Mashi (supra). Findings recorded by respondent No.2 in the impugned order dated 09.04.2019 is reproduced below:-
“ekuuh; mPp U;k;ky; ds vkns'k fnukad 10-9-2018 eas mfYyf[kr izLrj & 15 ds 12] (1) eas fn;s x;s m}gj.k ds foijhr ;kph Jh yrhQnnhq u dh loks v/khuLFk f'k{kk loks loxa Z dh gS tks lewg "x" ,oa "?k" eas ugha vkrs gSaA bl izdkj ekuuh; mPPk U;k;ky; }kjk mfYyf[kr jQhd elhg ds fu.k;Z ls ;kph Jh yrhQqnnhu dk izdj.k vkPNkfnr ugha gS A ftlds vk/kkj ij olwy dh xbZ /kujkf'k ;kph dks iqu% okil fd;k tkuk fu;elaxr ugha gSA”
From perusal of the same, it is clear that respondent No.2 is tried to over come of the judgment and order passed by this Court in the earlier writ petition filed by the petitioner, I am of the prima facie opinion that the aforesaid decision taken by the respondent No.2 is deliberately and wilfully defiance of the orders passed by this Court. The matter indeed is very serious.
Matter requires consideration.
In the facts and circumstances of the case, respondent No.2 is directed to file his personal affidavit within a week's time before this Court.
Put this matter in the additional cause list on 10.12.2019.
Again case was heard on 22.9.2021 and after hearing the counsel for both the parties, Court has passed the following order:-
“Heard learned counsel for petitioner and learned Standing Counsel for State-respondents.
Learned standing counsel submitted that pursuant to the order of this Court dated 03.12.2019, personal affidavit dated 12.12.2019 was filed by respondent No. 2, but the same is not on record. Office is directed to trace out the same and place it on record.
Court has perused the personal affidavit after obtaining the copy from learned standing counsel.
According to the personal affidavit, amount in dispute i.e. Rs.
2,46,344/- has been sanctioned on 17.12.2019 in favour of petitioner.
Learned counsel for the petitioner submitted that as per instruction from his client, till date, he has not received the amount in question i.e. Rs. 2,46,344/-.
Put up this case on 29.09.2021 in the additional cause list.
In the mean time, learned counsel for the petitioner as well as learned standing counsel is directed to seek instruction as to whether amount in question has been transferred in the account of petitioner or not.”
Today learned counsel for the petitioner informed that he has received amount in question i.e. Rs. 2,46,344/- without any interest. He next submitted that amount in question was wrongly deducted and detained vide orders dated 9.2.2001 & 21.7.2000, which was ultimately quashed by this Court in Writ-A No. 16141 of 2001 vide order dated 10.9.2018. Even again in the present petition, without contesting the case or filing the counter affidavit, payment has been made, which clearly show that there is absolute fault on the part of respondents, which is also accepted by them. Therefore, petitioner is entitled for interest upon payment i.e. Rs. 2,46,344/- which has been paid after more than 20 years.
Learned Standing Counsel could not dispute the facts so argued by the learned counsel for the petitioner.
Under such facts and circumstances of the case, petitioner is entitled for the interest upon the amount in question i.e. Rs. 2,46,344/-. Respondent nos. 1 & 2 are directed to pay the interest to the petitioner upon the amount in question i.e. Rs. 2,46,344/- paid to him from the date, it was due to the date of actual payment as per rules, if any, occupying the field. In case, there is no rule, he shall be paid interest at the rate fixed by the nationalized bank from time to time i.e. from due date to date of actual payment within two months from the date of production of computer generated copy of this order after verifying the same from the official website of Allahabad High Court.
With the aforesaid observations, the writ petition is disposed of.
Order Date :- 29.9.2021 Junaid