1. Heard learned counsel for the parties.
2. By means of this writ petition, the petitioners have assailed the order dated 09.09.2019 passed by respondent no.02 thereby re-fixing the pay of the petitioners with effect from the date of their initial appointment by superseding the earlier orders with the further direction to make recovery of the excess amount from the petitioners. The aforesaid orders have been enclosed as Annexure Nos. 1, 2 & 3 to the writ petition.
3. Learned counsel for the petitioners has drawn the attention of this Court towards the impugned orders wherein the case of the petitioners has been considered in the manner the case of Sri Ishrat Ali (Liftman) has been considered. In all the impugned orders relating to the petitioners, the name of Ishrat Ali has been indicated.
4. Learned counsel for the petitioners has drawn the attention of this Court towards Annexure No.08 which is a judgment and order dated 11.11.2019 passed by this Court in Writ Petition No. 30791 (S/S) of 2019 (Ishrat Ali vs. U.P. Cooperative Union Ltd. & Others) whereby this Court allowed the writ petition of Ishrat Ali quashing the impugned orders directing the opposite parties to grant retiral dues to the petitioners within stipulated time. For convenience, the judgment and order dated 11.11.2019 is being reproduced herein-below:-
"Heard Sri S.A. Khan learned counsel for petitioner and Sri Akhilesh Kumar Srivastava learned counsel appearing on behalf of opposite parties 1 to 4.
Learned counsel for petitioner submits that impugned orders have been passed directing recovery from the retiral dues of petitioner on account of wrong fixation of pay scale.
Learned counsel for petitioner submits that his case is covered by judgment of Hon'ble Supreme Court rendered in Rafiq Masih versus State of Punjab reported in (2015) 4 SCC 334.
Learned counsel for petitioner has also submitted that a bare perusal of impugned orders will make it clear that there is not a single averment as to any fraud or misrepresentation on the part of petitioner giving rise to wrong fixation of pay scale.
Learned counsel appearing on behalf of opposite parties however has denied submissions advanced by learned counsel for petitioner with the averment that the impugned orders have been passed after affording full opportunity of hearing to petitioner and as such there is no infirmity in them. It has also been submitted that even in case wrong fixation has been made regarding pay scale of petitioner, the same is required to be recovered since not doing so would entail loss to public exchequer.
Having heard learned counsel for parties and perusal of record, it is quite apparent that petition itself can be disposed of at admission stage itself upon a consideration of orders impugned and judgment of Hon'ble Supreme Court in the case of Rafiq Masih (supra) and therefore calling for counter affidavit is dispensed with, since it is also settled law as held by Hon'ble Supreme Court in the case of Mohinder Singh Gill and another versus The Chief Election Commissioner New Delhi and others reported in AIR 1978 SC 851 that orders impugned in petitions have to stand on their own footings and can not be supplemented by any submission or supplementary affidavit, as such also factors regarding recovery against petitioner have to be seen in terms only of reasoned indicated in impugned orders.
A perusal of order dated 21st September, 2019 and 17th October, 2019 makes it clear that recovery has been ordered to be effected from retiral benefits of petitioner only on account of wrong fixation of pay scale. There is absolutely no averment that such wrong fixation has occasioned as a result of fraud or misrepresentation on part of petitioner who even otherwise was working on Class IV post of Lift Operator.
A perusal of judgment rendered by Hon'ble Supreme Court in Rafiq Masih (supra) makes it clear that certain guidelines have been issued whereunder recovery by employers has been held to be impermissible in law. The relevant paragraph is as follows:-
"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."
Since in the present case, it is quite apparent that wrong fixation of salary leading to excess payment being made to petitioner was not on account of any fraud or misrepresentation by petitioner, it can be safely said that present case is covered by judgment of Hon'ble Supreme Court in Rafiq Masih (supra) and therefore recovery could not have been effected against retiral benefits of petitioner.
In view of the aforesaid, a writ in the nature of Certiorari is issued quashing the orders dated 21st September, 2019 and 17th October, 2019. A further writ in the nature of Mandamus is issued directing opposite party No.2 i.e. Managing Director, Uttar Pradesh Co-operative Union Limited, Sahkarita Bhawan, Lucknow to grant retiral dues of petitioner within a period of four months from the date a copy of this order is submitted before him.
In view of aforesaid, petition stands allowed."
5. Assailing the judgment and order dated 11.11.2019 in re:- Ishrat Ali (supra), the department has filed Special Appeal No. 569 of 2019 and the said appeal has been dismissed vide judgment and order dated 12.12.2019 and the said order has been enclosed as Annexure No. RA-1 to the rejoinder affidavit. The judgment and order dated 12.12.2019 passed by the Appellate Court is being reproduced herein-below:-
"Heard Sri Akhilesh Kumar Srivastava, learned Counsel for the appellants and Sri Shamshad Ahmad Khan, learned counsel for the respondent.
It is not disputed by the learned Counsel for the appellants that no undertaking was furnished by the respondent nor he gave any consent or misrepresented the department. It is also not disputed that after judgment of the learned Writ Court, the order has been complied with in the case of similarly situated employees of the U. P. Co-operative Union Ltd.
Learned Counsel for the appellants has drawn our attention to the decision of the Apex Court in the case of High Court of Punjab and Haryana and others v. Jagdev Singh [(2016) 14 SCC 267].
He has fairly conceded that the respondent was working on the Class-IV post of Lift Operator and no action has been taken against the erring officials who gave benefit to the respondent.
Learned Counsel for the respondent has submitted that the issue involved in this appeal is squarely covered by the judgment of the coordinate bench of this Court in the case of Surendra Kumar Srivastava v. U. P. Avas Evam Vikas Parishad through Chairman and five others, Service Bench No.26252 of 2016 decided on 21.12.2017. Paragraphs 17 to 23 of the judgment, which are relevant, read as follows:-
17. The core question for determination involved in the present writ petition is that whether the payment made on account of wrong fixation of pay can be recovered from arrears of pension of the petitioner or not, that too after his retirement from service and whether the order dated 19.10.2016 impugned in the present writ petition has correctly been passed considering the judgment of the Hon'ble Apex Court in case of Rafiq Masih (supra).
18. On account of promotion of the petitioner on the post of Assistant Engineer (Civil) the salary of the petitioner was fixed by Superintending Engineer on 21.09.2012 granting him benefit of one additional increment which has been found to be against the law after the retirement of the petitioner and accordingly, the same has been corrected and revised by order dated 02.04.2016 passed by Superintending Engineer and on account of the revision of pay, the recovery of the excess amount paid to the petitioner to the tune of Rs. 1,27,162/- has been recovered from the arrears of pension of petitioner. Relying on the paragraphs 11, 12 and 13 of the judgment of the Apex Court in case of Rafiq Masih (supra), the opposite party no.2 has held that since the order of fixation has been corrected within 5 years of its fixation and accordingly, the recovery to the tune of Rs. 1,27,162/- has righly been made as per the request of petitioner dated 11.05.2016.
19. Hon'ble Apex Court in the judgment and order dated 18.12.2014 passed in the case of Rafiq Masih after considering the matter in detail has been pleased to observe in para 10 that this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligation of the State. The para 10 of the said judgment, on reproduction, reads as under:
10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India."
20. The Hon'ble Apex court after considering various judgments of the Apex Court in regard to recovery of the excess amount paid to the employee held that recovery of excess payments made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer with the following emphasis:
"Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case (supra), that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation."
After detailing the issue in detail the Hon'ble Apex Court summarizes the few situations wherein recovery by the employer were emphazied in para-12 of the judgment, which is reproduced:
"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."
21. The above situations described in paragraph 12 of the judgment of the Hon'ble Apex court are binding as they have been issued under Article 142 of the Constitution of India and in view thereof the recovery from retired employees or employees who are due to retire within one year, order of recovery is impermissible in law and accordingly, the same cannot be made. While considering the same the opposite party no.2 has only considered the situation no. 3 disclosed in para-12 of the aforesaid judgment which shows that the 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 and accordingly, came to conclusion that since the pay fixation order has been corrected within five years of passing of the same, hence the recovery has been sought to be justified on this count. But, the opposite party no.2 failed to consider the judgment of the Hon'ble Apex Court in the light of position in respect of a retired employee, or employees who are due to retire within one year, from whom the recovery has to be made after his retirement, while the present case is of a retired employee. A retired employee, who has served the department for a long with sincerity and devotion, also deserves to be dealt with sympathetically.
22. In view of the above, we are of the considered opinion that the recovery of Rs. 1,27,162/- made from the arrears of pension of petitioner has wrongly been made as it is impermissible under law as held by the Hon'ble Apex Court in case of Rafiq Masih (supra).
23. Accordingly, the writ petition is partly allowed and the impugned order dated 19.10.2016 passed by the opposite party no.2, contained in Annexure No.1 to the writ petition, is hereby quashed and the opposite parties are directed to refund the recovered amount of Rs. 1,27,162/- to the petitioner within a period of one month from the date of receipt of a certified copy of this order."
Therefore, for the reasons assigned therein, we are not inclined to interfere with the order impugned in this appeal.
Accordingly, the Special Appeal lacks merit and is accordingly dismissed."
6. Sri Akhilesh Kumar Srivastava, learned counsel for the respondent has, however, drawn the attention of this Court towards Annexure No.-CA-1 which is an undertaking given by Sri Vinod Kumar Rai, Electrician, the petitioner no.3 to the effect that if the department finds any anomaly in making the payment of pay scale, the amount in question may be adjusted from the petitioner no.3, however, no other petitioners had given such undertaking. Therefore, in the light of dictum of Hon'ble Apex Court in re:- High Court of Punjab and Haryana and Others vs. Jagdev Singh [reported in (2016) 14 SCC 267], the excess amount paid to the petitioner no.3 can be recovered.
7. Replying the aforesaid submission of learned counsel for the respondent, the learned counsel for the petitioners has submitted that since the petitioner no.3 has retired from Class-III post and as per the decision of Hon'ble Apex Court in re:- State of Punjab vs. Rafiq Masih [reported in (2015) 4 SCC 334] no such recovery can be made from employees belonging to Class-III & Class-IV, therefore, no recovery can be made from the petitioner no.3 in the light of judgment in re:- Jagdev Singh (supra). Only (ii) of para 18 of Rafiq Masih (supra) has been clarified that recovery from the retired employees or employees who are due to retire within one year of order of the recovery may be made if they have given undertaking. He has further clarified that the undertaking in question was that if on account of wrong fixation of pay scale the excess amount is paid, the same may be adjusted but such order might have not been passed in the violation of principles of natural justice, inasmuch as, while passing the impugned order dated 09.09.2019 against the petitioner no.3, Vinod Kumar Rai, Electrician no opportunity of hearing has been provided to him seeking explanation apprising reason of excess payment. Admittedly, the petition of Ishrat Ali has been allowed by this Court and the same has been upheld by the Division Bench of this Court.
8. Having heard learned counsel for the parties and having perused the material available on record and the orders passed by the learned Single Judge and Appellate Court, I am of the considered opinion that since the issue of the present petitioners are identical with Sri Ishrat Ali and this Court has allowed the writ petition of Sri Ishrat Ali and said order has been upheld by the Appellate Court, therefore, the benefit of aforesaid orders passed in the case of Sri Ishrat Ali are being extended to the present petitioners.
9. So far as the issue of petitioner no.03 is concerned who is said to have given undertaking, it is clear that impugned orders have been passed without affording an opportunity of hearing and in view of the fact that condition no. 18(i) in re:- Rafiq Masih (supra) is still intact which provides that recovery from employees belonging to Class-III & Class-IV service may not be made, therefore, I do not find any good ground to distinguish the case of petitioner no.03 with other co-petitioners.
10. The writ petition is, hereby, allowed in terms of judgment and order dated 11.11.2019 passed by this Court in re:- Ishrat Ali (supra) (Annexure No.08) which has been upheld by the Division Bench of this Court in the Special Appeal on 12.12.2019 (Annexure No. RA-1).
11. Accordingly, the orders dated 09.09.2019 passed by the respondent no.02 are hereby quashed and the respondents are directed to make payment of consequential benefits to the petitioners with expedition preferably within a period of four months from the date of production of certified copy of this order.
12. No order as to costs.
Order Date :- 19.8.2021/ Vikas