Court No. - 16
Case :- WRIT - A No. - 15021 of 2018 Petitioner :- Mumtaz Ahmed Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Samir Sharma Counsel for Respondent :- C.S.C.,Nripendra Mishra
Hon'ble Mrs. Sangeeta Chandra,J.
Oral Heard Sri Samir Sharma, learned counsel for the petitioner and Sri Nripendra Mishra, learned counsel for the respondents.
It has been contended by Sri Samir Sharma that when the interim order dated 13.7.2018 was served upon the respondents, they have passed a fresh order on 25.7.2018. The Assistant Regional Manager, Kashi Depot, Varanasi has been asked to adjust Rs. 7,86,170/- from the dues of the petitioner and thereafter make payment.
Sri Nripendra Mishra has filed a counter affidavit to the supplementary affidavit filed today by the petitioner with an application for vacation of interim order granted earlier, it has been contended that the petitioner who was working on a class-III post in the Corporation, retired on 30.4.2018. Before his retirement, an office order dated 5.3.2018 was passed by which his pension and other retiral dues were settled with the observations that excess payment if any made to the petitioner should be recovered. The petitioner was asked to deposit excess amount of Rs. 8,02,102/- immediately. The petitioner did not deposit the amount as mentioned in the orders dated 8.3.2018 and 20.4.2018, therefore the recovery order dated 2.5.2018 was issued.
It has been further stated in the counter affidavit that gratuity amount of Rs. 9,36,472/- has already been paid to the petitioner through RTGS in his bank account. It is only the excess payment which has been made to the petitioner, which is sought to be recovered.
Learned counsel for the petitioner, Sri Samir Sharma has pointed out the averments made in paragraphs 17, 18, 23, 24 & 27 of the writ petition containing specific averment that no opportunity of hearing was given to the petitioner before the impugned orders were passed.
It has also been argued that such orders could have been passed cancelling the earlier order granting the benefit of selection grade, time scale and ACP to the petitioner only by issuing notice to him and considering his reply. No such procedure was followed.
In the counter affidavit filed by the respondents, there is no mention of any opportunity of hearing being given to the petitioner. Paragraph nos. 17 & 18 had been replied by saying that the service of the petitioner on the post of conductor was not satisfactory, and therefore he was not entitled for selection grade, time scale and further grant of ACP and when this fact was brought to the knowledge of the competent authority, the orders impugned had been passed.
With respect to paragraph nos. 23, 24 & 25 in the writ petition, it is again stated that when the fact was brought to the knowledge of the concerned authority regarding wrong fixation of pension on the basis of selection grade, time scale and ACP being given to him, the office order dated 5.3.2018 was passed, and thereafter the impugned orders dated 20.4.2018 and 2.5.2018 were passed. There is no mention of any opportunity being given to the petitioner or any exercise being carried out by the respondents themselves to come to a conclusion that excess payment had been made to the petitioner since 1991.
Learned counsel for the petitioner has pointed out the judgment rendered by the Hon'ble Supreme Court in State of Panjab & others Vs. Rafiq Masih (White Washer) 2015 (4) SCC 334. The Hon'ble Supreme Court has given the guidelines with regard to such employees who have long since retired or, who have been paid excess amount without any fault on their part and has observed that no recovery could be made from such employees in paragraph 18 of the said judgment.
Paragraph 18 of the judgment rendered in Rafiq Masih (supra) is being quoted herein below:-
"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 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."
The petitioner has stated specifically in his writ petition in paragraph 27 that selection grade, time scale and ACP were given to the petitioner without any misrepresentation or fraud being committed by him. The pay fixation was an unilateral act on the part of the Corporation itself as also the recovery orders which have been passed in pursuance of unilateral action taken by Corporation.
Since, no opportunity was given to the petitioner to place his case before the competent Officer i.e. the Regional Manager, UPSRTC, Varanasi, before the impugned orders were passed, the orders impugned are set aside.
The matter is remanded to the respondent no. 4 to give opportunity of hearing to the petitioner by issuing a show cause notice to him indicating as to how the Corporation has come to a conclusion that selection grade, time scale and ACP were not admissible to the petitioner when they were granted to him. The petitioner shall submit his reply with regard to his entitlement and then appropriate reasoned and speaking order be passed by the competent Authority.
Let the entire exercise be completed by the respondents within a period of four months from the date a certified copy of this order is produced before him. Till such a decision is taken by the competent Authority in the matter, no recovery shall be made from the petitioner's retiral dues.
Order Date :- 31.7.2018 Arif