Case :- WRIT - A No. - 10699 of 2020 Petitioner :- Sarojbala Pandey Reserved on 14.12.2020 Delivered on 07.01.2021 Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Purushottam Mani Tripathi Counsel for Respondent :- C.S.C.
Hon'ble Shekhar Kumar Yadav,J.
1. By means of this writ petition, petitioner has prayed for the following reliefs:-
(I) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 23.6.2020 passed by the respondent no. 2 and its consequential order dated 7.7.2020 passed by the respondent no. 4.
(ii) issue a writ, order or direction in the nature of mandamus directing the respondents to not to recover any amount from the petitioner in pursuance to the impugned orders.
(iii) Issue a writ, order or direction in the nature of mandamus directing the respondents to release her entire post retiral dues including pension, gratuity, leave encashment and general provident fund etc. with interest @ of 12 % within a period to be fixed by this Court.
2. Brief facts of the case are that the petitioner was appointed on 12.08.1985 on the post of Mukhya Sewika in the office of District Harijan and Social Welfare Officer, Basti. It is alleged that pursuant to the Government Orders issued from time to time, petitioner has been given the benefit of promotional pay scale of Rs. 5000-150-8000 w.e.f. 12.08.1999, on completion of 14 years of satisfactory service by the petitioner. Thereafter, petitioner is said to have been promoted on the post of Child Development and Programme Officer pursuant to the order dated 29.09.2009 passed by the District Programme Officer, District Gorakhpur and was also given benefit of one increment of her salary under the provisions of Rule 22-B of UP Financial Hand Book II. It is alleged that petitioner has been superannuated on 31.12.2019 from the post of Child Development Programme Officer, Pipraich, District Gorakhpur.
3. Grievance of the petitioner is that since the petitioner has been retired from her service on 31.12.2019 but the entire post retiral benefits of her including pension, gratuity, leave encashment and general provident fund etc has not been released to her as yet. It is alleged that on 23.6.2020, the Joint Director, Treasure and pension, Gorakhpur Division, District Gorakhpur (respondent no. 3) passed the impugned order whereby an objection has been raised while preparing the pension of the petitioner and further directed the respondent no. 4 to re-fix her salary and also to recover the excess amount paid to the petitioner from her gratuity. Pursuant to the said order, respondent no. 4 has passed the consequential order dated 7.7.2020 whereby the benefit of promotional pay scale/one increment which was given to her has been withdrawn and recovery of an amount to the tune of Rs. 3,06,113/- has been ordered to be made from her retiral dues.
4. The claim of the petitioner is that salary of the petitioner has been voluntarily fixed by the respondent authorities and the petitioner had no role in such fixation and, therefore, no recovery of excess amount of salary of the petitioner from her retiral dues is permissible. It is also contended that there is no misrepresentation or fraud on the part of the of the petitioner. Moreover, petitioner has not been given any opportunity of hearing before passing the impugned order of recovery. He placed reliance on the case of State of Punjab and others Vs. Rafiq Masih, 2015 (4) SCC 334.
5. On the other hand, learned Standing Counsel opposed the prayer and submitted that there is no ground to challenge the recovery which has been rightly directed to be made in view of excessive payment due to wrong fixation. It is further contended by learned Standing Counsel that the petitioner has given an undertaking with respect to the excess payment of the amount, if any, however, in the light of the said undertaking and in the light of the judgment of the Supreme Court in the case of High Court of Punjab & haryana and Others Vs Jagdev Singh reported in (2016) 14 SCC 267 such recovery has rightly been ordered.
6. Heard learned counsel for the petitioner and learned Standing Counsel for the State.
7. It is not in dispute that the petitioner has retired from her service after attaining the age of superannuation and thereafter the recovery has been ordered from her retiral dues. It is also not a case of the respondents that the petitioner has received excess payment by practising fraud or by making misrepresentation.
8. Law is well settled that no recovery could be made from the employees belonging to Class III and Class IV. It is also well settled law that in case excess payment was not made on account of any misrepresentation or fraud on the part of the employee, the same could not be recovered. It is also well settled that no recovery could be made without providing any opportunity or notice of hearing.
9. Hon'ble Apex Court in case of State of Punjab and others Vs. Rafiq Masih ,2015 (4) SCC 334 has categorically held that recovery from the retired employees or employees, who are due to retire is impermissible, especially when there was no misrepresentation, if any, on the part of the person concerned at the time of claiming benefit in his/her favour.
10. In the case at hand, petitioner stood retired on 31.12.2019 and recovery proceedings were initiated in the year 2020, when almost a year had elapsed, as such, taking note of Rafiq Masih (supra), this court finds the action of the respondents in recovering amount from the petitioner, who is admittedly a retiree, to be in violation of the law laid down by Hon'ble Apex Court.
11. Further, Hon'ble Apex Court in the subsequent case of High Court of Punjab & haryana and Others Vs Jagdev Singh reported in (2016) 14 SCC 267, while clarifying the principle enunciated in Rafiq Masih (supra), has held that recovery from the retired employees or employees, who are due to retire, is impermissible, cannot be made applicable to the situation where the officer to whom payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. In the aforesaid judgment Hon'ble Apex Court has held that if the officer has furnished an undertaking while opting for the revised pay scale, he/she is bound by the undertaking given by him/her. At this stage, it would be relevant to reproduce paras No. 9 to 11 of the aforesaid judgment, which read as under:-
"9. The submission of the Respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the state. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the Respondent was clearly on notice of the fact that a future re-fixation or revision may warrant an adjustment of the excess payment, if any, made.
10. In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc. this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer 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." (emphasis supplied).
11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking".
12. Careful perusal of aforesaid judgment rendered by the Hon'ble Apex Court clearly suggests that principle laid down by the Hon'ble Apex Court in Rafiq Masih's case that recovery from employee belonging to Class-III and Class-IV service (or Group C and Group D service) would be impermissible in law, still holds good. In the subsequent judgment rendered by the Hon'ble Apex Court in High Court of Punjab & haryana and Others Vs Jagdev Singh's case (supra), it has only clarified that recovery from those retired employees or who are due to retire within one year, of the order of recovery shall be permissible who had given undertaking at the time of taking benefit that any payment, if found in excess would be liable to adjusted.
13. In the present case, it is not in dispute that petitioner is a Class-III employee coupled with the fact that the petitioner is a retired employee and at no point of time she had given any undertaking making her liable for recovery. Though, the respondents have stated in their reply that the petitioner had given an undertaking, copy of which has been produced before the court along with instructions received by the learned Standing Counsel (copy of which has been placed on record) but on perusal of the same, it no where reflects any date as to when the said undertaking was filed; meaning thereby that the same has been filed at the time of fixation of pay-scale of the petitioner or the same has been filed at the time of retirement from service, as such, this Court has reason to disbelieve the stand taken by the respondents. Otherwise also, petitioner, who is a Class-III employee and a retired employee, cannot be compelled to refund the excess amount which has been paid by the respondents of its own, without any misrepresentation or fraud on the part of the petitioner. Moreover, the period, for which allegedly wrong pay scale was drawn by the petitioner is from 12.08.1999 up to her retirement, as such, the recovery proceedings initiated in the year 2020 are highly belated. There is no allegation that the pay fixation was due to the collusion with anybody. Moreover, the undertaking, if any, relied upon by the respondents cannot be said to be an undertaking of pay fixation at this belated stage, benefit of which was given in the year 1999.
14. Accordingly, the impugned order dated 23.6.2020 passed by the respondent no. 2 and its consequential order dated 7.7.2020 passed by the respondent no. 4 cannot be sustained and are liable to be quashed.
15. With the aforesaid observations, the writ petition is allowed and the impugned order dated 23.6.2020 passed by the respondent no. 2 and its consequential order dated 7.7.2020 passed by the respondent no. 4 are hereby quashed. Respondents are directed to release entire post retiral dues of the petitioner within a period of two months, failing which petitioner would be entitled to interest @ 6% per annum on the amount from the date of superannuation till its actual payment. It is also made clear that in case, the respondents have recovered the amount of Rs. 3,06,113/- from the petitioner, the same shall be refunded to the petitioner expeditiously and preferably within a period of two months from today.
Order Date :- 07.01.2021 RavindraKSingh (Justice Shekhar Kumar Yadav)