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2016 DIGILAW 2921 (ALL)

Veer Pal Singh v. State of U. P.

2016-08-23

ABHINAVA UPADHYA

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JUDGMENT Abhinava Upadhya, J. 1. Heard Sri Brij Bhushan Upadhyaya, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondent no.1 and Sri Baleshwar Chaturvedi, learned counsel appearing for respondents no.2,3 and 4. 2. By means of this writ petition the petitioner has come up to this Court challenging the orders dated 23.3.2011 and 1.4.2011 for recovery of a sum of Rs. 1,90,982/-. The said recovery has been initiated on account of wrong fixation of pay of the petitioner. 3. The brief facts are that the petitioner was initially employed as Muster Roll Employee in the erstwhile U.P.State Electricity Board. He was regularized on 16.4.1988 and has now finally retired from service on 31.12.2009. It has been brought on record that the petitioner was regularized on the post of Junior Meter Tester pursuant to an agreement between the petitioner and the employer upon a condition that only for the purposes of seniority the petitioner shall be treated in service from 15.2.1975 but he shall not be entitled to any wages and the seniority would be only notional for the purposes of determination of pension only. However, the Executive Engineer, Electricity Test Division, Agra mistakenly misinterpreted the office order dated 28.8.2003 and gave notional increment applicable to notional salary to the petitioner. After retirement of the petitioner when the papers for pension were being scrutinized the aforesaid lacuna was detected by the Accounts Department and thus recovery has been initiated for such a sum that was wrongly paid to the petitioner in 2003. 4. According to the learned counsel for the petitioner and also from the pleadings filed by the parties before this Court, it does not appear that the petitioner in any way manipulated the aforesaid error for his own benefit. If any mistake has been committed, the same has been committed by the Department through their own negligence and no motive can be attributed to the petitioner for such mistake. However, the fact remains that it is a wrong disbursement of public money which has benefited the petitioner and now the question is whether the same is recoverable or not? 5. Learned counsel for the petitioner has relied upon a decision of the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) reported in 2015(4) SCC 334 . 5. Learned counsel for the petitioner has relied upon a decision of the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) reported in 2015(4) SCC 334 . The Supreme Court while discussing the earlier judgements delivered on the question has laid down the para meters under which no recovery can be made from the employees belonging to Class III and Class IV or Group-C and Group-D Service and recovery from the retired employees or the employees due to retire within one year of the order of recovery. 6. In the present case, the petitioner appears to be a Group-D Employee and has already retired from service in 2009 and the recovery order has been issued on 23.3.2011, i.e., after his retirement. Relevant portion of the judgment is quoted herein below: "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." 7. According to the learned counsel for the petitioner, the amount of Rs. 1,90,000/- and odd is to be recovered from the gratuity payable to the petitioner and after retirement the petitioner claims that he is not in such financial health where he can afford the deduction of about Rs. According to the learned counsel for the petitioner, the amount of Rs. 1,90,000/- and odd is to be recovered from the gratuity payable to the petitioner and after retirement the petitioner claims that he is not in such financial health where he can afford the deduction of about Rs. 2,00,000/- (Two Lacs) from his gratuity. 8. Considering the aforesaid facts and circumstances of the case and also the para meters laid down by the Hon'ble Supreme Court in cases of this kind, the impugned orders cannot be sustained and are, accordingly, quashed. The respondents are restrained from recovering the said amount from the dues payable to the petitioner. 9. The writ petition to the aforesaid extent is allowed.