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Allahabad High Court · body

2015 DIGILAW 2422 (ALL)

Manmohan Pandey v. State of U. P.

2015-08-14

MAHESH CHANDRA TRIPATHI

body2015
JUDGMENT Mahesh Chandra Tripathi, J. Heard learned counsel for the petitioner. Learned Standing Counsel appears for the respondents. 2. By means of present writ petition, the petitioner has prayed for following reliefs: - "(i) a writ, order or direction in the nature of certiorari quashing the office order dated 10.09.13 passed by the Executive Engineer, Provincial Division, Public Works Department, Ballia (Annexure 10 to the writ petition) as also the recovery notice dated 10.09.2013 also issued by the Executive Engineer, Provincial Division, Public Works Department, Ballia (Annexure 9 to the writ petition). (ii) a writ, order or direction in the nature of certiorari quashing the circular letter dated 12.8.13 issued by the Engineer-in-Chief, Public Works Department, U.P., Lucknow (Annexure 8 to the writ petition). (iii) a writ, order or direction of a suitable nature commanding the respondents to make regular payment of monthly salary to the petitioner in accordance with the office order dated 20.12.11 (Annexure 7 to the writ petition) and to further restrain the respondents from effecting any recovery from the salary payable to the petitioner. (iv) a writ, order or direction of a suitable nature commanding the respondents to treat the fixation made under the office order dated 20.12.11 as entitling the petitioner to actual disbursement of salary at higher level w.e.f. 08.09.2010 to make payment of regular monthly salary accordingly and also to disburse the arrears of salary arisen on such account within a period to be specified by this Hon'ble Court." 3. In the matter on 19.2.2014 the Court had passed an interim order restraining the recovery for a sum of Rs.1,54,250/-. 4. Brief facts giving rise to the writ petition are that the petitioner was appointed as a Work Agent in the Public Works Department on 1.1.1995. Since then the petitioner is in continuous service. On 31.8.2001 the petitioner was granted promotion as Work Supervisor. The work and conduct of the petitioner has been fully satisfactory and there was no complaint with regard to his work and conduct. 5. On 8.12.2008 the State Government issued a Government Order in pursuance to the recommendation of 6th Pay Commission revising the pay scales applicable to Government servants. Under the Government Order the revision has been enforced w.e.f. 1.1.2006. 5. On 8.12.2008 the State Government issued a Government Order in pursuance to the recommendation of 6th Pay Commission revising the pay scales applicable to Government servants. Under the Government Order the revision has been enforced w.e.f. 1.1.2006. Immediate upon issuance of the aforesaid Government Order, the Engineer-in-Chief, Public Works Department by letter dated 24.10.2008 made a reference to the State Government for removal of discrepancies under the new revised pay scale with regard to field employees division. A reminder dated 24.12.2008 was also sent in this regard. 6. On 16.11.2011 the State Government issued a Government Order whereby the revised pay scale applicable to 23 categories of employees of Public Works Department was revised in accordance with the specifications contained therein. In the aforesaid Government order the post of Work Supervisor is specified in Sl. No.22 by which instead of Grade Pay of Rs.1900/- the Work Supervisors were given Grade Pay of Rs.2800/-. In compliance of the aforesaid Government Order the Engineer-in-Chief issued a Circular Letter dated 21.11.2011 along with the said Government Order. In accordance with the aforesaid Government Order and the Circular letter the Executive Engineer, Provincial Division, Public Works Department, Ballia by order dated 20.12.2011 proceeded to re-fix the salary of the petitioner. In pursuance thereof the salary of the petitioner was fixed in the revised pay scale of Rs.5200-20200/- with Grade Pay of Rs.2800/- w.e.f. 1.1.2006. The aforesaid office order further sanctioned the pay band of Rs.9300-34800/- with Grade Pay of Rs.4200/- w.e.f. 1.9.2009 under the Assured Career Promotion Scheme on completion of 8 years length of service on the post of Work Supervisor. The aforesaid benefit has been given in terms of the Government Order dated 4.5.2010 making provision for Assured Career Promotion Scheme. The office order dated 20.12.2011 further specified that the benefit under the said order would be available from 16.11.2011. It is averred that in accordance with the office order dated 20.12.2011 the regular payment of monthly salary of the petitioner commenced. 7. It transpires from the record that the Director/Establishment, Revision Bureau, Finance Department had issued a letter dated 13.6.2013 to the effect that the Government Order dated 16.11.2011 sanctioned benefit under the said Government Order only w.e.f. 16.11.2011. It is averred that in accordance with the office order dated 20.12.2011 the regular payment of monthly salary of the petitioner commenced. 7. It transpires from the record that the Director/Establishment, Revision Bureau, Finance Department had issued a letter dated 13.6.2013 to the effect that the Government Order dated 16.11.2011 sanctioned benefit under the said Government Order only w.e.f. 16.11.2011. In pursuance thereof the Director (Establishment), Engineer in Chief, Public Works Department issued an order dated 12.8.2013 taking objection against the fixation of salary and directing remedial steps for rectification of the fixation with further direction for effecting recovery of excess payment made. Accordingly the Executive Engineer, Provincial Division, Public Works Department, Ballia had proceeded to re-fix the salary of the petitioner and pass an office order dated 10.09.2013 and as such the salary of the petitioner had been refixed as on 1.1.2006 at the Grade Pay of Rs.1900/- in the pay band of Rs.5200-20200. Further the salary of the petitioner has been fixed at the Grade Pay of Rs.2400/- in the pay band of Rs.5200-20200 w.e.f. 1.12.2008 as the second promotional pay scale admissible to the petitioner under the Assured Career Scheme, which was notified under the Government Order dated 4.5.2010. As such the department had further proceeded to refix the salary of the petitioner in the Grade Pay of Rs.2400/- in the pay band of Rs.5200-20200 w.e.f. 16.11.2011. In pursuance to the said refixation the Executive Engineer had directed for recovery of excess payment of salary to the tune of Rs.1,54,252/- from the salary / pension of the petitioner. 8. Learned counsel for the petitioner submits that the order impugned cannot be sustained on the ground that the petitioner was not guilty of furnishing any incorrect information, which had led the concerned competent authority to commit the mistake of making the higher payment to the petitioner. The payment of higher salary to the petitioner was not on account of any misrepresentation made by him nor he had committed any fraud in the fixation and as such the petitioner was innocent in the matter. He further makes submission that in the present matter no excess amount had been paid to the petitioner. The payment of higher salary to the petitioner was not on account of any misrepresentation made by him nor he had committed any fraud in the fixation and as such the petitioner was innocent in the matter. He further makes submission that in the present matter no excess amount had been paid to the petitioner. The fixation was correct but in the garb of the impugned order the authority had proceeded to recover the excess amount and the same had been passed without affording any opportunity to the petitioner and as such the order impugned is hit by the principle of natural justice. 9. On the other hand learned Standing Counsel has vehemently opposed the writ petition on the ground that at the moment when the infirmity and illegality had been noticed, the respondent authorities had immediately taken a note and direction was issued to recover the excess amount, which had been paid to the petitioner due to inadvertence. He had accepted to the extent that in the fixation of the higher salary the petitioner had no involvement or he had made any misrepresentation in the matter. However, he submits that in case of wrong fixation the department has every right to recover the said amount within reasonable time. 10. Heard rival submissions and perused the record. 11. Hon'ble the Supreme Court in State of Punjab & ors. v. Rafiq Masih (Civil Appeal No.11527 of 2014) on 18.12.2014 deciding the similarly controversy summarised 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. (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." 12. In the present matter it is admitted case that the petitioner is Class-III employee and had no role in determination of the pay fixation and as such at this belated stage the department cannot proceed for the recovery of the said amount. It is also apparent that before passing the order of recovery the opportunity of being heard was also not provided to the petitioner, which is also against the principle of natural justice. 13. The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fairplay in action." As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, I am of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. No doubt, the extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. 14. In view of the above and considering the judgement in State of Punjab & Ors. v. Rafiq Masih (Supra), the order impugned and the subsequent recovery cannot be sustained and are hereby quashed. 14. In view of the above and considering the judgement in State of Punjab & Ors. v. Rafiq Masih (Supra), the order impugned and the subsequent recovery cannot be sustained and are hereby quashed. No recovery can be made from the petitioner but so far as the fixation of salary of the petitioner is concerned, this Court is of the view that the Secretary, Public Works Department, Government of U.P., Lucknow-respondent no.1 will look into the grievance of the petitioner and pass appropriate order strictly as per the various Government Orders within a period of two months from the date of production of certified copy of this order after affording opportunity to the petitioner. 15. With these observations the writ petition is partly allowed.