RESERVED
At Residence
Case :- WRIT - A No. - 44951 of 2015 Petitioner :- Ramveer Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- S.P. Sharma,Ajay Kumar Srivastava,Samir Sharma Counsel for Respondent :- C.S.C.,M.P. Rai,Sudhir Dixit,U.S. Singh Visen
Hon'ble J.J. Munir,J.
1. The petitioner commenced his career's journey as a Conductor with the Uttar Pradesh State Road Transport Corporation1. He was promoted to the post of a Booking Clerk. He had a smooth ride for the most part of his career until the fag end of it. The petitioner served the Corporation from 01.12.1981 to 31.07.2014. While in service, the petitioner was granted the first selection grade with effect from 01.12.1992, on completion of 10 years continuous satisfactory service. His pay-scale was revised accordingly. The petitioner was granted a second selection grade with effect from 01.12.2002, on completion of 20 years continuous satisfactory service, with a corresponding revision of his pay. Again on 19.02.2013, by means of an order of that date, the petitioner was granted benefit of the third Assured Career Progression2. He was granted grade-pay of Rs. 4200/- with effect from 01.12.2013. Upon grant of this ACP, the petitioner’s emoluments were revised and he was also paid arrears.
2. Trouble for the petitioner began on 14.03.2014, when he was issued with a charge sheet. It appears that at the relevant time, the petitioner was deputed to do the work of Issue Clerk in the Checking Department at the Aligarh Establishment of the Corporation. It was his duty to deposit receipts of the Corporation in the Corporation Treasury on a single queue bus service received on a daily basis. The petitioner, however, was charged with depositing the receipts of the
1 hereinafter referred to as “Corporation”
2 for short “ACP”
Corporation accumulated over a number of days, instead of doing it daily. This was prima facie found to be a violation of the rules of the Corporation, besides an act of negligence. The petitioner was charged, as already said, on 14.03.2014, with violation of Rule 61 and 62 of the Uttar Pradesh State Road Transport Corporation Employees (Other Than Officers) Service Regulations, 19813.
3. The petitioner submitted a reply to the charge sheet, denying all the charges against him. Pending disciplinary proceedings, the petitioner retired, on attaining the age of superannuation, on 31.07.2014. The departmental inquiry that had been initiated against the petitioner went ahead and an inquiry report was submitted on 13.11.2014, according to which, the petitioner was found negligent in the performance of his duties. It was one of the petitioner’s defences that he did not make the delay in deposit of receipts, received bag- wise, of his own. It was done that way on account of directions in this regard, received from the then Assistant Regional Manager, on 31.12.2011 and 18.01.2012. The said Officer of the Corporation had instructed that when the load factor was low, bag-wise deposit be not made and the conductor concerned be required to speak to him. It was further directed that bag-wise deposit of receipts be made only in the event the load factor was 75%. It was explained that the delay in depositing the receipts was on account of these instructions and there was no culpability on the petitioner’s part.
4. The Assistant Regional Manager, who held inquiry into the charges, submitted an inquiry report dated 13.11.2014, holding the charges proved, and the petitioner guilty of negligence in the performance of his duties. The Regional Manager of the Corporation at Aligarh, without issuing a show-cause notice, passed an order dated 29.11.2014, holding the petitioner guilty of negligence. He imposed a punishment of recovery of a sum of Rs. 8,000/- from the petitioner,
3 for short “Regulations of 1981”
with a warning for the future. This order is one of the orders under challenge, the challenge being introduced through amendment. By an order dated 29.11.2014, the petitioner’s gratuity was calculated by the Corporation, determining it at a total sum of Rs. 6,29,773/-; but the sum of Rs. 8000/- ordered to be recovered from the petitioner was deducted from his gratuity. The order dated 29.11.2014, calculating the petitioner’s gratuity to the extent that it deducts a sum of Rs. 8000/- from the sum payable, is also under challenge.
5. Mr. Samir Sharma, learned Senior Advocate assisted by Mr. Ajay Kumar Srivastava, learned counsel for the petitioner, submits that both the impugned orders dated 29.11.2014 represent one part of the petitioner’s grievance, that has two facets to it. The first of the two orders is an order awarding him punishment in departmental proceedings illegally, and the other order deducts the sum of Rs. 8000/- illegally from the petitioner’s gratuity, which, according to Mr. Sharma, notwithstanding the validity of the order of punishment, could not be deducted from whatever money was payable in gratuity to the petitioner. As it appears, this was not the end of troubles for the petitioner. By means of an order dated 20.06.2015, without affording any opportunity of hearing to the petitioner, the first and the second selection grades and the third ACP benefits paid to the petitioner were modified, directing recovery of the excess payments made. By this order of 20th June, 2015 the first selection grade was awarded to the petitioner with effect from 01.12.1994, instead of 01.12.1992, and the second selection grade with effect from 01.12.2006, instead of 01.12.2002. All payments made in accordance with the earlier date of award of the two selection grades and the consequential third ACP were directed to be recovered, as already said. Thereafter, by an order dated 08.07.2015, close on heels of the order dated 20.06.2015, the petitioner’s emoluments were revised and re-fixed, directing recovery of the sum of money paid in excess, going by the revised calculation with effect from 01.12.1994. The orders dated 20.06.2015 and 08.07.2015 are also under challenge in the present writ petition. This downward revision of emoluments for the petitioner also led to redetermination of gratuity payable to him. This was done by means of an order dated 10.07.2015. Instead of the gratuity originally determined and paid to the petitioner in the sum of Rs. 6,39,179/-, it was redetermined at a figure of Rs. 6,26,746/-. Thus, a sum of Rs.3027/- was found to be paid in excess to the petitioner, under the head of gratuity, in terms of his redetermined emoluments. This was worked out by the order dated 10.07.2015, passed again by the Assistant Regional Manager, directing recovery of a sum of Rs.3027/- from the petitioner, under the head of gratuity paid in excess.
6. It is the petitioner’s case and apparently not in dispute that though the gratuity was determined prior to a redetermination of the petitioner’s emoluments at a figure of Rs.6,29,773/-, the entire amount was not paid to the petitioner. It appears that a sum of Rs.3,30,790/- had been withheld by the respondents under the head of leave encashment. The petitioner approached this Court, by means of Writ - A No. 25039 of 2016, with a case that a sum of Rs. 3,30,790/- on account of gratuity had not been released. This Court, by an order dated 26.05.2016, summarily disposed of the petition, with a direction to the Regional Manager of the Corporation to examine the petitioner’s claims, noticed in this Court’s order dated 26.05.2016, passed in Writ - A No. 25039 of 2016, and to decide the same by means of a reasoned and speaking order, within a period of three months from the date of presentation of a certified copy of that order. In compliance with the order dated 26.05.2016 passed in Writ - A No. 25039 of 2016, the Regional Manager, Corporation at Aligarh, considered the petitioner’s representation dated 02.06.2016, where he did a cursory reappraisal of the order dated 20.06.2015, whereby the petitioner’s emoluments were redetermined. He approved of that order. It appears also from the order dated 27.08.2016 that, what was withheld in the sum of Rs. 3,30,790/- was not on account of unpaid gratuity; it was due under the head of leave encashment. In order to set the record straight, it must be mentioned that the fact that a sum of Rs. 3,30,790/- was withheld by the respondents from the gratuity dues of the petitioner, appears to be an erroneous mention, because the matter was summarily disposed of on the basis of whatever the petitioner said; and, being all that was before the Court.
7. A reading of the order dated 27.08.2016, it must be remarked here, shows that dues of the petitioner that were withheld, was a sum of money greater than Rs.3,30,790/-. This difference in the petitioner’s entitlement had come about as a result of the direction to redetermine his emoluments made on the basis of orders dated 20.06.2015 and 08.07.2015, both passed by the Regional Manager of the Corporation at Aligarh. It transpires that the Regional Manager of the Corporation has proceeded to hold that Rs.2,76,762/- is all that has been determined towards excess emoluments paid to the petitioner, on account of a premature grant of the first and the second selection grade as well as the third ACP. He has directed recovery of the sum of money of Rs.2,76,762/- in the manner that it has already been set-off against the petitioner’s entitlement to leave encashment in the sum of Rs.3,30,790/-, and the remainder of Rs.54,028/- under this head has also been paid. Challenge to the order dated 27.08.2016 has also been brought in through amendment. Thus, there are six orders under challenge in the present writ petition, to wit : two orders dated 29.11.2014 passed by the Regional Manager and the Assistant Regional Manager, Corporation at Aligarh, punishing the petitioner post retirement, in disciplinary proceedings; and orders dated 20.06.2015, 10.07.2015, 08.07.2015 and 27.08.2016, all in substance, revising downwards the petitioner’s emoluments, already determined, and directing recovery.
8. The parties, having exchanged affidavits when this matter came up on 17.12.2020 was heard there and then. Judgment was reserved.
9. Heard Mr. Samir Sharma, learned Senior Advocate assisted by Mr. Ajay Kumar Srivastava, learned counsel for the petitioner, Mr.
U.S. Singh Visen, learned counsel appearing on behalf of respondent nos. 2 and 3, and the learned Standing Counsel appearing on behalf of respondent no. 1.
10. Now, so far as the order dated 29.11.2014 passed by the Regional Manager of the Corporation at Aligarh, punishing the petitioner in disciplinary proceedings with the imposition of a penalty of Rs. 8,000/- recoverable from his emoluments, along with a warning to be careful in future is concerned, Mr. Sharma submits that the said order is absolutely without jurisdiction. It is the learned Senior Counsel’s contention that disciplinary proceedings in this case commenced on 14.03.2014, with the issue of a charge-sheet to the petitioner. The petitioner filed a reply to the charge-sheet, denying the charges. Pending disciplinary proceedings, he retired on 31.07.2014, upon attaining the age of superannuation. Notwithstanding the petitioner’s retirement, the departmental inquiry was conducted and a report submitted, holding the petitioner guilty of negligence in the performance of his duties. It is pointed out that the Disciplinary Authority, the Regional Manager of the Corporation at Aligarh, without issuing a show-cause notice, proceeded to punish the petitioner, by means of the impugned order, in the manner hereinabove indicated. It is argued by Mr. Samir Sharma, learned Senior Advocate, that there is no provision under the Regulations of 1981 to initiate or continue disciplinary proceedings against a retired employee of the Corporation. He urges that the order of punishment dated 29.11.2014, and the consequential recovery, directed to be made from the petitioner’s gratuity vide order dated 29.11.2014, are without jurisdiction and manifestly illegal. The stand of the Corporation vis-a- vis the impugned order dated 29.11.2014 is carried in their counter affidavit filed in opposition to the amended pleas. It is a counter affidavit filed by one R.S. Pandey, the Assistant Regional Manager, Uttar Pradesh State Road Transport Corporation, Leader Road, Allahabad. It is an affidavit dated 08.12.2020. The stand of the Corporation is most startling. Paragraph no. 5 of the counter affidavit under reference, in answer to the amended Paragraph nos. 12 and 13 of the writ petition (described in the counter affidavit as Paras 3(12) & (13) of the affidavit filed in support of the amendment application) says that no departmental proceedings were ever initiated against the petitioner, or conducted. It is stated that the order dated 08.07.2015 was passed because the petitioner had been wrongfully placed in a higher pay scale. It does not mention at all anything about the order dated 29.11.2014, specifically. But, the stand of the Corporation is very clear that no departmental proceedings were ever initiated against the petitioner. Paragraph no. 5 of the counter affidavit under reference, filed on behalf of the Corporation, reads :
5. That the contents of paragraph no.3 (12 & 13) of the Affidavit filed in support of Amendment Application are false and appear to be misconceived hence denied. In reply thereto it is submitted that no departmental enquiry was ever initiated or conducted against the petitioner and the order dated 08.07.2015 was passed because the higher pay scale Rs. 1175-259-1625 was granted to the petitioner on 01.12.1992 instead of 1175-25- 1625 hence the order dated 08.07.2015 was infact a correction order and not the punishment hence the amendments made in para 3(13) is meaningless and is not covered by the Ruling sited (sic) in the paragraph.
(emphasis by Court)
11. Now, if that stand of the Corporation were to be believed, the petitioner never faced any disciplinary proceedings. This Court has described that stand of the Corporation as startling, because a perusal of the order dated 29.11.2014, passed by the Regional Manager of the Corporation at Aligarh shows fair and square that it is an order of punishment passed in disciplinary proceedings against the petitioner. There could never be any doubt about the fact that it is so. The fact that a State Corporation like the U.P. State Road Transport Corporation should take a stand like the one in Para 5 of the counter affidavit filed in response to the amended pleas is, to say the least, most shocking. The said affidavit has been filed by an Officer of the rank of an Assistant Regional Manager. This Court cannot go by the Corporation's stand that they never passed the order of punishment dated 29.11.2014, or ever initiated disciplinary proceedings against the petitioner. This Court has no option but to ignore the Corporation's stand taken in counter affidavit filed in answer to the amended pleas, so far as the validity of the order dated 29.11.2014 is concerned. This virtually leaves the assertion of the petitioner about the impugned order dated 29.11.2014 being without jurisdiction and a nullity, as it was passed by the Corporation after the petitioner’s retirement, unrebutted. This Court can safely take it to be unrebutted that disciplinary proceedings commenced against the petitioner on 14.03.2014, when the petitioner was still in service, but concluded on 29.11.2014, after he had retired from the Corporation’s service on 31.07.2014, upon attaining the age of superannuation. However, the petitioner's stand in law cannot be accepted merely for the respondents failure to plead that upon the petitioner's retirement, the Corporation lost all jurisdiction to punish him. This Court has examined the Regulations which govern the petitioner's service conditions. There is nothing apparent or brought to the Court's notice, which may show that after retirement, the employers have a continuing disciplinary jurisdiction over their retired employee. For a legal proposition, retirement upon superannuation is one of the modes by which the relationship of an employer and employee comes to a terminus. Post- retirement, the relationship of an employer and employee, or master and servant, ceases. That relationship is a sine qua non for the exercise of disciplinary jurisdiction by the employers. However, where the tenure of an employee is governed by Statute or statutory service rules or regulations, provision may be made, extending the disciplinary jurisdiction of the employers beyond an employee's retirement, particularly so, where proceedings have commenced prior to retirement. But, in this case, nothing in the Regulations point to a power of that kind with the Corporation over their ex-employees, who have superannuated and retired from service. This question engaged the attention of a learned Single Judge of this Court in Rajendra Prasad Singh v. State of U.P. and 4 Others4. Incidentally, in Rajendra Pratap Singh (supra), a decision towards which Mr. Sameer Sharma drew this Court's attention, it was held by this Court, in the context of the regulations, following a decision of the Supreme Court in Dev Prakash Tiwari v. Uttar Pradesh Cooperative Institutional Service Board, Lucknow and others5 and the decision of a Division Bench of this Court in Banda District Cooperative Bank Limited and 2 Others v. State of U.P. and 2 Others6, thus :
On a pointed query of the Court, the learned counsel for the appellant candidly admitted that there was no provision under the U.P. Cooperative Service Regulation 1975, which may authorize continuance of the proceedings from the stage at which the defect has been noticed nor is there any provision in terms of which the proceedings may be continued and taken to their logical conclusion even after the retirement of the petitioner. We may in this connection refer to the law as laid down by the Supreme Court in Bhagirathi Jena Vs.
4 Writ - A No. - 7517 of 2016, decided on 29.02.2016
5 (2014) 7 SCC 260
6 Special Appeal Defective No. 31 of 2016, decided on 03.02.2016 Board of Directors, O.S.F.C. & others4 as reiterated by the Supreme Court in Deo Prakash Tewari Vs. U.P. Cooperative Institutional Service Board which clearly hold that once an employee has retired from service, in the absence of any authority vesting in the employer the right to continue disciplinary proceedings thereafter, the enquiry proceedings would be deemed to have lapsed and the employee would be entitled to all retiral benefits. In light of the above law laid down by the Supreme Court, we are unable to accede to the submission of the learned counsel for the appellant for a remit of the proceedings.
For the aforesaid reasons, we find no ground warranting interference with the judgment of the learned Single Judge. The special appeal is consequently dismissed.
12. Now, the decision in Rajendra Prasad Singh was concerned with the respondent-Corporation and the Regulations on the same issue of law as the one that arises here. It was held on the terms of the Regulations, going by principles that had endorsement of authority, that in the absence of provisions in the service rules that enabled disciplinary proceedings to continue beyond superannuation, disciplinary proceedings would be without jurisdiction. In Rajendra Prasad Singh, the Corporation had conceded to the aforesaid position of law. Here, they have not at all pleaded to it. Rather, they have pleaded absurdly on facts to show that no order of punishment was ever passed against the petitioner, or disciplinary proceedings initiated against him. This Court has, for itself, as already stated, examined the Regulations, and is of opinion that there is no jurisdiction with the Corporation to proceed in disciplinary proceedings against an employee, who retires pending such proceedings, in the absence of provisions enabling them in this behalf. Those provisions are not there. As such, the order dated 29.11.2014 passed by the Regional Manager of the Corporation at Aligarh, directing recovery dated 29.11.2014, is absolutely without jurisdiction, and liable to be quashed. The question whether recovery can be made from the petitioners' gratuity need not be answered here, as the orders that gave rise to the issue have been found to be vitiated by this Court. This takes the Court to the validity of another group of orders, the net effect of which is to bring about a prejudicial or downward revision of petitioner's emoluments, by postponing grant for the first selection grade, the second selection grade, and the third ACP, as already indicated. The substantive order, by which the petitioner's emoluments were directed to be revised downwards, is the order dated 20.06.2015. This order was again passed by the Regional Manager of the Corporation at Aligarh. The other orders under challenge, that seek to effect recovery of emoluments paid in excess, that is to say, the orders dated 10.07.2015 and 08.07.2015, are all consequential orders. It is submitted by Mr. Sameer Sharma, learned Senior Counsel for the petitioner, that the order dated 20.06.2015 has been passed without opportunity of hearing to the petitioner, and behind his back. It is his case that the order aforesaid, being one adversely affecting the petitioner's rights, could not be made, without affording him reasonable opportunity of showing cause. It is particularly submitted by Mr. Sharma that the petitioner, being a Class-III employee, who had been paid his emoluments as determined by the Corporation, in terms of pay fixation made in his favour from time to time, the principle laid down by the Supreme Court in State of Punjab & Others v. Rafiq Masih (White Washer) and others7 would prevent the Corporation from recovering any emoluments paid in excess. So far as the question regarding the provision of opportunity is concerned, Mr. U.S. Singh Visen submits that the order dated 20.06.2015 only involved a correction to the mistaken pay fixation. It did not involve any punishment inflicted on the petitioner. As such, no opportunity of hearing was required. About the right of the employer to recover, which is subject to various exceptions carried in Rafiq
7 (2015) 4 SCC 334 Masih (supra), Mr. Visen submits that the petitioner being paid in excess of his due emoluments, there is no equity in his favour that may entitle him to the benefit of the principles laid down in Rafiq Masih.
13. This Court has considered the rival submissions. So far as the question of opportunity of hearing is concerned, the principle that any order that visits a person with adverse civil consequences, ought to be preceded by opportunity, is established beyond cavil. It is not the stigma of punishment, but the adversity of consequences to an individual, that attracts the obligation of a State or of its instrumentalities, to hear a person likely to be affected before decision. This principle has particularly been laid down in the case of S.N. Mukherjee v. Union of India8. Thus, the submission advanced on behalf of the Corporation that the order dated 20.06.2015, being not one of punishment, but about the rectification of a mistake in the determination of the petitioner's emoluments, cannot be sustained. The aforesaid decision does have the serious civil consequences, adverse to the petitioner by reducing his emoluments. There is, however, one facet of the matter about this issue. The petitioner earlier came up before this Court through Writ - A No. 25039 of 2016, raising a grievance about the Corporation, unauthorisedly withholding his gratuity in the sum of Rs.3,30,790/-, for the petitioner thought that what was withheld was part of his gratuity; in fact, it was leave encashment dues, as already said. This Court disposed of the writ petition, directing the Corporation to examine the petitioner's claim and decide the same by means of a reasoned and speaking order, within a specified period of time. The Regional Manager of the Corporation considered the petitioner's representation dated 02.06.2016, that was submitted to him, along with a copy of the order passed by this Court in Writ - A No. 25039 of 2016. While passing the
8 (1990) 4 SCC 594 order dated 27.08.2016, rejecting the petitioner's claim, the Regional Manager, in one sense, did hear the petitioner vis-à-vis the substantive order dated 20.06.2015, whereby his emoluments suffered a downward revision. A perusal of the said order shows that the petitioner was granted the first and the second selection grade and consequently, the third ACP, not because he had not put in a requisite number of years in service, but because he had to his credit, two orders dated 10.10.1993 and 21.07.1995, by which his annual increments for specified periods of time were stopped. These orders, which appear to be punishment orders, and regarding which there is no pleading before this Court, were not taken into account, when the first and the second selection grade was granted to the petitioner. In the opinion of this Court, denial of opportunity would still be there, because the petitioner was not specifically confronted with the question that he had been granted the first and the second selection grade in error, ignoring the two increment stoppage order of limited duration passed against him. Till this adverse material was brought to the petitioner's notice, the order dated 27.08.2016 is a hollow reiteration of the order dated 15.06.2020, with no meaningful opportunity extended to the petitioner. The vice of denial of opportunity, therefore, continues to vitiate the order dated 27.08.2016, as much as it does the order dated 20.06.2015. Quite apart, this Court is of opinion that to revise a Class-III employee's emoluments downwards and prejudicial to him after retirement, on ground that at the time when he was awarded a particular selection grade, some minor punishment order/orders that disentitled him were not noticed, would be inequitable. It is here that the other limb of Mr. Sharma's submissions also becomes relevant, where it is urged that the employers in this case ought not to recover from the petitioner, a retired Class-III employee, on the principles laid down in Rafiq Masih.
14. In Rafiq Masih, the principles on which the right of the employer to recover depends, were laid down in the following words by their Lordships of the Supreme Court :
7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to the employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, “for doing complete justice in any cause” would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court.
8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.
9. The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality can be found in Articles 14 to 18 contained in Part III of the Constitution of India, dealing with “fundamental rights”. These articles of the Constitution, besides assuring equality before the law and equal protection of the laws, also disallow discrimination with the object of achieving equality, in matters of employment; abolish untouchability, to upgrade the social status of an ostracised section of the society; and extinguish titles, to scale down the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39-A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the “directive principles of State policy”. These articles of the Constitution of India contain a mandate to the State requiring it to assure a social order providing justice—social, economic and political, by inter alia minimising monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker sections.
15. After considering various decisions, where the right of the employer to recover had fallen for scrutiny, the following principles were laid down in Rafiq Masih :
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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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.
16. It would appear that recovery from the petitioner ought not to be made, because the petitioner's case falls under the first and the second classes of cases adumbrated in Rafiq Masih, where recovery of emoluments paid in excess, has not been favoured. The petitioner is a Class III/Group C employee, and at the same time, a retired employee of the Corporation.
17. The orders dated 20.06.2015 and 27.08.2016 passed by Regional Manager of Corporation at Aligarh, in the opinion of this Court, have not been able to purge themselves of the vice of denial of opportunity. The orders aforesaid would clearly be bad, in the opinion of this Court, on this score. An answer to the question whether orders being found to be bad on ground of denial of opportunity, should respondents be given the logical right to hear the petitioner afresh, confronting him with material on the basis of which he has been subjected to an adverse revision or diminution in his emoluments, would ordinarily be in the employer's favour. But, here is a case where the petitioner is a retired Class-III employee, who is exposed to the peril or a sufferance of diminution in his emoluments, because the employers have committed a mistake in reading his service records, while granting him the first and the second selection grades. In the opinion of this Court, it would be most inequitable and illogical, at this distance of time, to subject the petitioner to the otherwise logical consequence of a callous mistake made by the employers years ago, when the petitioner was in their employ. This opinion, this Court expresses, on the supposition that if heard, the petitioner would still be subject to a downward revision of his emoluments. It is not known whether it would truly be so. But in any view of the matter, the equities that arise on the principles settled in Rafiq Masih, the employers ought not to be permitted to recover from the petitioner.
18. In the result, this writ petition succeeds and is allowed. The orders dated 29.11.2014, 29.11.2014, 20.06.2015, 10.07.2015, 08.07.2015 and 27.08.2016, variously passed by the Regional Manger and the Assistant Regional Manager of the Corporation at Aligarh, are hereby quashed. The entire post-retiral benefits of the petitioner, without any diminution to his emoluments, shall be paid to him forthwith.
19. There shall, however, be no order as to costs.
20. Let this judgment be communicated to the Regional Manager, U.P.S.R.T.C., Budh Vihar Depot, Aligarh by the Joint Registrar (Compliance).
Order Date :- 5.5.2021 I. Batabyal / Anoop