Hon'ble S.C. Chaurasia,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel. With the consent of the parties, we proceed to decide the writ petition finally at admission stage.
2. The petitioner was appointed on the post of Assistant Employment Officer through Public Service Commission on 12.11.1976. After ten years of satisfactory service, he was given selection grade and posted as District Employment Officer on 11.11.1986. By order dated 31.10.2001 with effect from 12.11.1992, the petitioner was granted first selection grade along with other persons in furtherance of Government Order dated 2.12.2000 after completion of fourteen years of satisfactory service. Again, he was granted second selection grade in terms of the Government Order dated 2.9.2002 after completion of 24 years of continuous service. The petitioner attained the age of superannuation on 31.7.2006. At the time of retirement, he was holding the office of Regional Employment Officer. By the impugned order dated 12.5.2008, passed by the opposite party No.2, an amount of Rs.2,00,586/- has been deducted from the gratuity of the petitioner on the ground that the petitioner was given excess amount by incorrect calculation by the officials during the course of employment. Withholding the amount of Rs.2,00,586/-, rest of the gratuity was released in favour of the petitioner by the impugned order.
3. While assailing the impugned order, learned counsel for the petitioner relied upon [2004(22)LCD 486 Brahma Lal versus Union of India and others, [2004(22)LCD 490] State of U.P. Versus Kalu, (1994)2 SCC 521 Shyam Babu Verma and others versus Union of India and others, [1998(16) LCD - 1277] Dr. Shitla Prasad Nagendra versus Gorakhpur University and others, (1994)6 SCC 589 R. Kapur versus Director of Inspection (Painting and Publication) Income Tax and another, (1981)1 SCC 449 Som Prakash Rekhi versus Union of India and another and submits that the respondents have got no right to recover the amount paid during the course of employment, that too after lapse of almost three years. Submission is that the calculation with regard to payment of higher pay-scale was done by the respondents and their staff themselves with due communication to the petitioner. Accordingly, it has been submitted that no recovery could have been made from the petitioner's gratuity by the respondents while passing the impugned order.
4. On the other hand, learned Standing Counsel submits that since incorrect calculation was done the State has got right to recover the dues from the post-retiral benefits.
5. In the case of Brahma Lal (supra), relying upon earlier judgments, it has been held that the retiral benefits including the gratuity and provident fund cannot be stopped as a 'set off' for outstanding dues against the employee.
6. In the case of Shyam Babu Verma(supra), Hon'ble Supreme Court held that higher pay scale erroneously given to the employee with no fault on his or her part will not entitle the State to recover any excess amount already paid to the employees.
7. In R. Kapur's case(supra), Hon'ble Supreme Court has provided interest on account of delayed payment of retiral dues.
8. In the case of Som Prakash Rekhi (supra), Hon'ble Supreme Court held that the State does not have got right to recover the amount from the receipt of gratuity and provident fund. To reproduce relevant portion :
"65...........But if he draws PF or gratuity that pension will be pared down by a separate rule of deduction from the pension. It follows that there is no straining of the language of the regulations to mean, firstly, a right to pension quantified in certain manner and, secondly, a right in the management to make deduction from out of that pension if other retiral benefits are drawn by the employee. There appears to be the pension scheme. If this be correct, there is no substance in the argument that the pension itself is automatically reduced into a smaller scale of pension on the drawal of provident fund or gratuity. Pension is one thing, deduction is another. The latter is independent of pension and operates on the pension to amputate it, as it were. If a law forbids such cut or amputation the pension remains intact.
67.We must realise that the pension scheme came into existence prior to two beneficial statutes and Parliament when enacting these legislations must have clearly intended extra benefits being conferred on employees. Such a consequence will follow only if over and above the normal pension, the benefits of provident fund and gratuity are enjoyed. On the other hand, if consequent on the receipt of these benefits there is a proportionate reduction in the pension, there is no real benefit to the employee because the Management takes away by the left hand what it seems to confer by the right, making the legislation itself left-handed. To hold that on receipt of gratuity and provident fund the pension of the employee may be reduced pro tanto is to frustrate the supplementary character of the benefits. Indeed, that is why by Sections 12 and 14 overriding effect is imparted and reduction in the retiral benefits on account of provident fund and gratuity derived by the employee is frowned upon. We, accordingly, hold that it is not open to the second respondent to deduct from the full pension any sum based upon Regulation 16 read with Regulation 13."
9. In another case, reported in 2004 ESC(All) 455 Union of India versus Rakesh Chandra, a Division Bench of this Court after considering catena of judgments of Hon'ble Supreme Court held that incorrect calculation of pay scale and payment thereof of no fault on the part of the employee shall not make out a ground to recover the same.
In view of settled proposition of law, it appears that once the amount is paid for no fault on the part of the government employee, then at later stage, that too after retirement, the same cannot be recovered. Of course, in case higher pay-scale is paid because of collusive act between the office and the employee concerned, then in such situation, it will be open for the State to recover the same.
In view of above, the writ petition is liable to be and is hereby allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 12.5.2008, passed by opposite party No.2 with consequential benefits. In case already recovery has been made, the same may be refunded to the petitioner forthwith.
The writ petition is allowed accordingly. No order as to costs.
Order Date :- 9.5.2011 kkb/