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2016 DIGILAW 946 (ALL)

Sr. Account Officer/Nidhi-16 v. Bare Lal Upadhya

2016-03-15

D.Y.CHANDRACHUD, YASHWANT VARMA

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JUDGMENT The special appeal has arisen from a judgment and order of the learned Single Judge dated 14 January 2016. The first respondent was appointed on 1 March 1960 with the department of consolidation and joined the police department in the State in 1971 from where he retired from the post of Sub Inspector in 1995. 2. On 23/29 December 2006, an order was served on the first respondent informing him that an amount of Rs. 71621/- was recoverable from him on the ground of excess payment from his GPF account. In pursuance thereof, an order was passed on 2 February 2007 for the recovery of the same. The learned Single Judge has set aside the recovery action, following the law laid down by the Supreme Court inState of Punjab v. Rafiq Masih (White Washer), JT 2015 (1) SC 95. The principle of law which has been formulated in the decision in Rafiq Masih is 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." 3. (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." 3. The submission which has been urged on behalf of the appellants, Office of the Accountant General (Accounts and Entitlement) 1, UP, AGUP, in appeal is that under Rule 11 (6) of the General Provident Fund (U.P.) 1985, in case a subscriber is found to have drawn from the Fund an amount in excess of the amount 2 AGUP standing to his credit on the date of the withdrawal, the overdrawn amount shall be repaid by him with interest thereon, or in default, would be recovered by deduction from the emoluments or other dues of the subscriber. In case the subscriber is still in service, the amount shall be repaid by him or recovered from him in one lump sum. 4. The issue which still needs to be addressed is as to whether such an action was permissible after a lapse of well over 11 years from the date of retirement of the employee who held a class III post. 5. In the counter filed by the Dy. Account General (Fund) before the learned Single Judge, the following averments were made: "It is pertinent to mention here that the debit of Rs. 5000-00 taken by the petitioner from his G.P.F. Account No. UP- 981472 vide Voucher No.53 of April, 1981 from Ballia Treasury was not entered in his G.P.F. pass book by his parent office in the year 1981-82. Therefore, the said debit of Rs. 5000-00 could not be deducted in final calculation by the officer of the answering-respondents at the time of authorisation of payment of the amount of Rs. 7917-00 and Rs. 59052-00 as the Leques Cards were not traceable at the time of calculation. However on receipt of further complaint from the petitioner about short payment of the amount of his G.P.F. Account, the G.P.F. Account of the petitioner was entirely revised and recalculated based on Pass Book and Ledger Cards right from the years 1970-71 to 2006-2007 taking into account all the credits and debits of his G.P.F. Account No. AVU/42576, RVU-9087 and PU-98472 and as a result the balances of G.P.F. Account of the petitioner appeared in minus balance of Rs. 71621-00 including interest upto November, 2006, the minus balance of Rs. 71621-00 including interest upto November 2006 was communicated to the respondent no.2 with copy to the petitioner vide letter No. Fund IX/95/6410/F.P.-190/MBR-128/665 dated 23/29.12.2006 along with year-wise calculation for the period from 1970-71 to 2006-07." 6. From the counter affidavit, it appears that on 19 April 1996, an amount of Rs. 7917/- including interest was authorised for payment. Thereafter upon the receipt of a complaint from the first respondent, his GPF account was recalculated and consequent upon recalculation, an amount of Rs. 59052/- including interest upto February 2003 was again authorised for payment on 13 March 2003. The above quoted extract from the counter affidavit indicates that a debit which was made of Rs. 5,000/- in 1981-82 was, according to the AGUP, not properly entered in the GPF Pass Book and could not be deducted in the final calculation. However, according to the AGUP, after the receipt of a further complaint from the first respondent, the entire account was revised based on the Pass Book and Ledger Cards from 1970-71 to 2006-07 and the recovery action was initiated. Rule 11 (6) contemplates that in the event of a payment in excess of the entitlement, it is open to the authorities to take action for recovery. However, it is further trite law that any such action must be initiated within a reasonable period of time. In the present case, recalculation for the period between 1970-71 onwards took place only in 2006 nearly 11 years after the date of retirement. 7. In this background, the view of the learned Single Judge cannot be faulted particularly having regard to the principles which have been laid down by the Supreme Court in the judgment noted above. 8. We, therefore, do not entertain the special appeal. 9. The special appeal is, accordingly, dismissed. There shall be no order as to costs. Appeal dismissed.