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2013 DIGILAW 1272 (ALL)

Prabhakar Sharma v. State of U. P. and Others

2013-04-30

ANIL KUMAR

body2013
Anil Kumar, J.— Heard Sri Vishal Kumar Upadhyay, learned counsel for the petitioner, Sri Abhinav Narain Trivedi, learned Additional Chief Standing Counsel and perused the record. Petitioner, who is working on the post of Constable in P.A.C. U.P. has been given personal pay with effect from December 2008 till September, 2011. Thereafter by means of impugned order dated 13.1.2012 ( Annexure no.1) passed by opposite party no.6/Deputy Superintendent of Police( Kosh) Security Branch Intelligence Department, Lucknow the amount as mentioned therein is sought to be recovered from the salary of the petitioner on the ground that the same has been wrongly calculated as such the excess amount which has been paid to him be recovered from the salary of the petitioner in installment of Rs. 1000/- per month. Aggrieved from the said facts, petitioner has approached this Court by filing present writ petition. On 25.1.2012 this court has passed an order, the relevant portion of the order is quoted as under:- "Learned counsel for the petitioner submits that the impugned order of recovery from petitioners' salary in pursuance to the impugned order dated 13.01.2012 (Annexure No. 1) passed by O.P. 6 is contrary to law as laid down by the Apex Court in the case of Shyam Babu Verma and others Vs. Union of India and others, (1994) 2 Supreme Court Cases 521, as well as by this Court in the case of Harish Chandra Srivastava Vs. Sate of U.P. and others, 1996 (14) LCD 1004, in the case of Union of India and others Vs. Rakesh Chndara Shrma and others, 2003 ESC (All) 455 and in the case of Krishna Kishore Khanna Vs. State of U.P. and otehrs, 2011 (29) LCD 1245, as such the same is arbitrary in nature. Prima facie the submissions made by learned counsel for the petitioner appears to be correct as such till the next date of listing no recovery shall be made form the salary of the petitioner in pursuance to the impugned order dated 13.01.2012 (Annexure No. 1) passed by O.P. No. 3. Prima facie the submissions made by learned counsel for the petitioner appears to be correct as such till the next date of listing no recovery shall be made form the salary of the petitioner in pursuance to the impugned order dated 13.01.2012 (Annexure No. 1) passed by O.P. No. 3. List after six weeks." Learned counsel for the petitioner while challenging the impugned order submits that prior to passing of the impugned order, no opportunity whatsoever has been given to the petitioner to put forward his case/defence as such the impugned action to recover the same in pursuance to the impugned order is arbitrary in nature, thus, violative of Article 14 of the Constitution of India as well as principle of natural justice, liable to be set aside. Sri Abhinav Narain Trivedi, learned Additional Chief Standing Counsel in rebuttal submits that there is no illegality or infirmity in the impugned order which has been passed by opposite party no.6 in the present writ petition . He further submits that the petitioner is entitled for personal pay but the same has been wrongly calculated. When the said facts came to the knowledge of the authority concerned by way of audit report, the impugned order for recovery of the amount of Rs.7030/- which has been excess paid to the petitioner from the salary of the petitioner in installment of Rs. 1000/- per month has been passed. In support of his arguments he has placed reliance on the averments made in para 4 and 6 to the counter affidavit, the relevant portion of the said para has been quoted as under:- "After audit of the records of November, 2010 to November, 2011, the audit party of U.P. Police Headquarters, Allahabad found that under the family welfare scheme; vide Government order dated 9.9.2004 and 18.4.2000 the sanction of payment of personal pay ws given on the basis of the grade pay admissible to the post held by the candidates; whereas the same was paid on the basis of higher/promotional pay scale, which is illegal. Since the petitioner was paid excess amount than the actual amount, as such, vide letter dated 13.1.2012 the Superintendent of Police( Treasury ) Security Branch Intelligence Department Lucknow has issued direction to th recover the excess amount from the salary of the employees/officer in the installments of Rs. Since the petitioner was paid excess amount than the actual amount, as such, vide letter dated 13.1.2012 the Superintendent of Police( Treasury ) Security Branch Intelligence Department Lucknow has issued direction to th recover the excess amount from the salary of the employees/officer in the installments of Rs. 1000/- per month, whihc does not suffer from any illegality; rather the same is in accordance with law. That after audit of the documents of November,2010 to November,2011 it was found that the personal pay scale under the family welfare scheme was given on the basis of higher/promotional pay scale; whereas, according to Government Order dated 9.9.2004 the same ought to be given on the basis of grade of the post held the officer/employee which is illegal, as such, audit party of U.P. Police Headquarters Allahabad, raised objection regarding the same, in pursuance whereof the order of recovery have been issued. It is furehr submitted that presently the personal pay scale under family welfare scheme is being paid in accordance with the provisions of the Government Order dated 11.12.2008." In respect to recovery of excess amount paid to an employee for which there is no fraud or misrepresentation on his part, voluntarily by the employer. Later the same is sought to be recovered on the ground that it has been paid due to mistake of interpretation of rules etc., Hon'ble the Supreme Court in the case of Chandi Prasad Uniyal Vs. State of Uttarakhand (Civil Appeal No. 5899 of 2012, after considering the earlier judgments passed on the point in issue, namely, Shyam Babu Verma v Union of India (1994) 2 SCC 521 , Sahib Ram v. State of Haryana 1995 (1) LBESR 206 (SC), Col. B. J. Akkara (Retd.) v. Government of India & Ors. (2006) 11 SCC 709 and Syed Abdul Qadir & Ors. v. State of Bihar & Ors. (2009) 3 SCC 475 , held that if salary or wages have been paid to an employee by an employer voluntary in bona fide manner without there being any element of fraud or misrepresentation on his part can be recovered from the employee but the same cannot be recovered in two circumstances (a) if an employee has retired (b) on the verge of retirement" Applying this fundamental principles of natural justice to a wide variety of proceedings in cases classified by academic writers under the head "Administrative law". And the learned Judges have had no hesitation in setting aside orders passed in the exercise of quasi-judicial power, wherever there was want of notice to the party affected. Recent trends in court-decisions show that this principle of natural justice must be applied even to purely administrative decision-making if that should affect an individual employee.' In the case of Shiv Prakash Richaria vs. State of U.P. and Ors. (2008) 3 UPLBEC 2517 this court while quashing an order of recovery against an employee who has been paid excess amount voluntarily by the employer without there being any element of fraud or misrepresentation on his part held as under:- "Another ground on which the impugned order is liable to be set aside is that no opportunity of hearing was afforded by the respondents to the petitioner prior to passing of the impugned order." A Division Bench of this Court in the case of Harish Chandra Srivastava vs. State of Uttar Pradesh and Ors. (1996) 3 UPLBEC 1340 while quashing an order of recovery of an excess amount paid to an employee without any fault on his part in paragraph no.19, (the relevant portion quoted) has held as under:- "Para 19- The order impugned to this writ petition is, therefore, liable to be quashed not only on the ground of want of affording reasonable opportunity of being heard to the petitioner but also on the ground that the petitioner cannot be held responsible for securing promotion on the higher scale of pay by misleading the Department and therefore the payment of salary cannot be recoverd." In the case of Awadh Nath Tripathi vs. Chief Development Officer, Sant Kabir Nagar and Ors. 2005 (23) LCD 177 after taking into consideration the law as laid down by Hon'ble Supreme Court in the case of Bihar State Electricity Board and another v. Vijay Bahadur and another (2002) 10 SCC 99 , and by this Court in the case of Bindeshwari Sahai Srivastava v. Chief Engineer, Irrigation Department, Lucknow and others 1996 AWC 947 and B.N.Singh v. State of U.P. 1979 ALJ 184 it has been held that if wages have been paid to an employee by an employer voluntarily in a bona fide manner without there being any element of fault or mis-representation on the part of the employee, subsequently the same cannot be recovered by the employer on the ground that the same has been wrongly paid to the employee, without affording any opportunity of hearing to him. In the case of Bhagwan Shukla, v. Union of India and others AIR 1994 Supreme Court 2480 wherein paragraph no.3 held as under:- "We have heard learned counsel for the parties. That the petitioner's basic payhad been fixed since 1970 at Rs.190/- p.m. is not disputed. There is also no dispute that the basic pay of the appellant was reduced to Rs.181/- p.m. from Rs.190/- p.m. in 1991 retrospectively w.e.f. 18-12-1970. the appellant has obviously been visited with civil consequence but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There, has, thus been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being hears. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There, has, thus been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being hears. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequence should be passed without putting the concerned to notice and giving him a hearing in the matter." Thus, in the light of the abovesaid facts, if an employee has been paid excess amount voluntarily by the employer without there being any fault or misrepresentation on his part and he does not fall in the categories of employee as given in the case of Chandi Prasad Uniyal (supra) from whom the said amount can not be recovered then from such employee the same can be recovered but before doing so he may be given an opportunity of hearing to put forward his case/defence. For the foregoing reasons, the impugned order dated 13.1.2012 ( Annexure no.1) passed by opposite party no.6/Deputy Superintendent of Police( Kosh) Security Branch Intelligence Department, Lucknow is set aside, and the matter is remanded to opposite party no. 6 to take fresh decision in accordance with law in the matter in question after providing opportunity of hearing to the petitioner expeditiously, say, within a period of six weeks from the date of receiving certified copy of this order. With the above observations, writ petition is allowed. _____________