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Uttarakhand High Court · body

2016 DIGILAW 655 (UTT)

Shailendra Singh Bisht v. State of Uttarakhand

2016-09-29

ALOK SINGH, K.M.JOSEPH

body2016
JUDGMENT : K.M. Joseph, J. After hearing the learned counsel for the parties, we are of the view that the delay condonation application as well as the restoration application should be allowed. Accordingly, both the applications will stand allowed. 2. Petitioner retired on 31.03.2001 as a Senior Medical Officer, Doon Hospital, Dehradun. He was immediately paid Rs. 91,751/-, representing 90% of his G.P.F. It is the further case of the petitioner that after almost ten years, he was asked to pay Rs. 78,461/- as extra amount paid by way of G.P.F. Petitioner submitted Annexure No. 3 dated 14.05.2010, which is an application, along with which he submitted a cheque for Rs. 78,461/-. The amount was deposited; Annexure No. 4 is the receipt. It is thereafter, that by letter dated 11.01.2012 (Annexure No. 5) it was stated that out of Rs. 91,751/-, the petitioner has been paid Rs. 85,461/- as extra payment. Respondent no. 3 (Chief Superintendent, Doon Hospital, Dehradun), where the petitioner had worked, informed respondent no. 2 i.e. Accountant General, Uttar Pradesh, Allahabad that the petitioner had deposited Rs. 78,461/- on 17.05.2010. By Annexure No. 7 dated 06.03.2012, which is the impugned order, the petitioner was called upon to deposit the balance amount of Rs. 1,43,750/- after deducting Rs. 78,461/-, namely, Rs. 65,289/-. There is another order dated 17.03.2012 for recovering the amount of Rs. 65,289/-, produced as Annexure No. 8. The same is also challenged by way of an amendment. 3. On the other hand, in the counter affidavits filed by respondent nos. 2 and 3 separately, the stand taken is that there is overpayment to the petitioner. The actual case can be gleaned from the counter affidavit filed by the Accountant General. Therein, what is stated is as follows:- “8. That in the instant case, the parent department without getting reconciled the GPF passbook of the petitioner with the records of answering respondent had made 90% payment of GPF to the petitioner and thereafter forwarded 10% Final payment GPF case of the petitioner to the Office of the answering respondent. Therein, what is stated is as follows:- “8. That in the instant case, the parent department without getting reconciled the GPF passbook of the petitioner with the records of answering respondent had made 90% payment of GPF to the petitioner and thereafter forwarded 10% Final payment GPF case of the petitioner to the Office of the answering respondent. In the necessary checking of GPF pass book it revealed that although the GPF pass book of the petitioner was made from the year 1973-74, yet instead of making yearly closing from the year 1973-74, the annual closing of GPF pass book had been done from year 1989-90 on the basis of erroneous accounts slip wherein an overstated balance had been carried over on the basis of wrong closing balance of Rs. 25857/- instead of correct Rs. 15857/- for the year 1981-82. 9. That as the petitioner is entitled to the payment of his GPF on the basis of his actual subscription/withdrawals, the 10% final payment calculation was made from the year 1973-74 on the basis of GPF pass book wherein after adjustment of 90% payment it transpired that with interest upto March 2005, the petitioner had been paid an amount of Rs. 85461/- over an above his 100% GPF due amount in the 90% payment of GPF itself and as there being nothing further to be authorised to the petitioner, a letter dated 7.4.2005 along with entire year wise details of calculation of GPF account of the petitioner was sent to the parent department under intimation to the petitioner for recovery of the overpaid amount as per provisions of Rule 11(6)(7) of aforesaid Rules of 1985. 13. That as per provisions of Rule 11(6)(7) of the aforesaid Rules of 1985 it is required that parent department should ensure recovery of the amount as intimated by the answering respondent along with current rate of interest as well as 2.5% rate of interest over and above current rate of interest whereas from the information received and evidence on record it transpired that the parent department had not ascertained the recoverable amount by charging further interest and 2.5% additional interest as per Rule 11(7) and as such the net recoverable amount as per Rules have been ascertained by adjusting the amount already deposited by the petitioner and whereupon an amount of Rs. 76,866/- with interest upto March 2012 has been still found as recoverable from the petitioner and as such a letter dated 18.4.2010 along with entire year wise details of calculation of GPF account No. MJU/30823 of the petitioner has been sent under intimation to the petitioner for recovery of overpaid amount from the petitioner. A copy of letter dated 18.4.2012 along with entire year wise details of calculation of GPF account of the petitioner is attached as Annexure CA-1 to this affidavit.” 4. Learned counsel appearing for the petitioner would submit that the recovery is bad because it is being made after 10 years of petitioner’s retirement. It is also submitted that the amount was not paid on account of any mistake of the petitioner, but the mistake is attributable to the Department in correctly calculating the amounts in the G.P.F. account. He would also rely on a judgment of the Apex Court in the case of State of Punjab and others etc. Vs. Rafiq Masih (White Washer) etc., reported in 2014 (2) UD 576. Therein, we notice that the Court has inter alia held as follows:- “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.” 5. (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.” 5. It is true that if we strictly go by the calculation done on account of the mistake, which was committed much earlier in correctly maintaining the G.P.F. account and if we also calculate the interest on the amount as per Rules, the amount, which is calculated finally in the impugned notice may be correct. But the only question, which we have to consider, is whether it is equitable in the facts of this case to permit the recovery. The petitioner has retired from service on 31.03.2001. The amount of Rs. 91,751/- was calculated as 90% of his G.P.F. and was paid to him. For remaining 10%, as is the procedure, the matter went to the Office of the Accountant General. It is thereafter, that the Accountant General noted that the account was not being maintained on account of the fact that several years ago the mistake crept in and not being corrected, it led to a situation, where excess amount was paid over to the petitioner. We also note that this is a case where on being called upon by the respondents, the petitioner has already paid an amount of Rs. 78,461/-. Apparently, the mistake arises out of the wrong entry in a sum of Rs. 10,000/- and the interest which kept accumulating from time to time. While we may agree with the respondents that the amount actually calculated, which is demanded, may be strictly due, but in view of the fact that the impugned orders are issued after 11 years of the petitioner’s retirement and also the fact that earlier the petitioner has already paid Rs. 78,000/- and odd, we would think that in the circumstances, it will be inequitable to enforce the recovery of the said amount. 6. In view of the above, the writ petition is allowed and the impugned orders are quashed.