Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 161 (ALL)

YOGENDRA MULLIEK v. STATE OF Uttar Pradesh

2018-01-18

SUDHIR AGARWAL

body2018
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri Harsh Trivedi, Advocate holding brief of Sri Abhishek Mishra, learned counsel for the petitioners and learned Standing Counsel for respondents. 2. The petitioners have assailed order dated 6.1.1999 passed by Registrar Co-operative Societies U.P, Lucknow whereby he has recommended recovery of the amount paid to petitioners as a result of annual increments prior to 1.1.1986; as well as order dated 24.7.1999 passed by Sub-Registrar (Administration) for Registrar. It is stated that in the enquiry it was found that petitioners had been granted annual increments without following procedure prescribed under Rule 24 of Subordinate Co-operative Service Rules, 1979 (hereinafter referred to as the “Rules, 1979”) hence amount paid is recoverable. 3. Learned counsel for petitioners has stated that order impugned speaks that annual increments could have been granted only after completion of two years’ probationary period as well as confirmation of services and, therefore, benefit thereof prior to it was not permissible under law, whereas the facts of the case are different. It is stated that before grant of aforesaid benefit, petitioners had completed probationary period and confirmation had also been done, which has not been disputed in the counter-affidavit. 4. Firstly I find that the very basic argument that increment was wrongly given and it was in violation of Rule 24 of Rules, 1979 is totally misconceived. 5. A perusal of Rule 24 shows that first increment to a person on probation shall be given when he was satisfactorily completed one year of probation and second increment shall be given when he has completed probation and confirmed. In case the period of probation is extended then increment shall also stand deferred. Aforesaid Rule, therefore, nowhere says that a person who is on probation shall not be entitled to any increment whatsoever. In the present case respondents have not placed anything on record to show that petitioners did not render satisfactorily service during probation or that their probation was increased at any point of time. The assumption that unless a person is confirmed, increment was not payable, is clearly incorrect and contrary to Rule 24. It shows a total misreading and lack of appreciation of import of Rule 24 on the part of respondents. 6. The assumption that unless a person is confirmed, increment was not payable, is clearly incorrect and contrary to Rule 24. It shows a total misreading and lack of appreciation of import of Rule 24 on the part of respondents. 6. The next submission on the part of counsel for petitioner is that increments were granted by Competent Authority and there was no element of fraud or misrepresentation on the part of petitioners thus also benefit of salary as a result of grant of increment is not recoverable after a long time. 7. I find substance in aforesaid submission. Admittedly, it is not the case of respondents that there was an element of fraud or misrepresentation on the part of petitioners. Increments were granted in 1986 and prior thereto, while impugned order of recovery has been passed after more than a decade, i.e., in 1999. The principles laid down by Supreme Court in State of Punjab and others v. Rafiq Masih, (2014) 8 SCC 883 , in my view, would clearly be attracted in the case in hand. Therein the Court said as under: “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-II 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.” 8. (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.” 8. The petitioners’ case is also covered by clauses (i), (ii) and (iii) of of judgment. 9. The petitioners were class-III employees and most of them have either already retired or going to retire within one year. They had been granted benefit of annual increments in the years 1981-82 and respondents issued notice for recovery of amount in the year 1999 i.e. after more than 17 years from the date of payment. 10. In the light of the aforesaid facts and the law laid down by Supreme Court we find that certainly petitioners’ case is covered under the exceptions carved out by Supreme Court. Accordingly the impugned orders dated 6.1.1999 and 24.7.1999 are unsustainable and are hereby quashed. 11. The writ petition stands allowed.