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2018 DIGILAW 801 (ALL)

SAVITRI PATHAK v. STATE OF U. P.

2018-04-04

AJIT KUMAR

body2018
JUDGMENT Hon’ble Ajit Kumar, J.—Heard Sri A.K. Ojha, learned counsel for the petitioner and learned Standing Counsel for the respondents. 2. This writ petition is directed against the order of recovery dated 23.5.2009, whereby, an amount Rs. 6,51,660/-, which is due against the deceased husband of the petitioner, is directed to be deposited, otherwise, the same will be recovered from the retirement dues of the deceased husband of the petitioner who died on 30.11.2007 while serving the respondent. 3. The argument advanced on behalf of the petitioner is that the impugned order of recovery has been passed without giving any show-cause notice or opportunity of hearing, inasmuch as, the recovery is directed against the dues of her husband who had already died in harness. The next leg of the argument is that the order of recovery dated 23.5.2009 is absolutely silent on reason qua the recovery amount as to in what head and what category this recovery has accrued against the dues of deceased husband of the petitioner except the item No. 3. 4. Per contra, the argument advanced by learned counsel for the respondent is that there were certain articles which were required to be handed over by the deceased employee in the concerned stores at Jhansi but were not handed over and a show-cause notice to that effect was given to the deceased husband of the petitioner on 5.10.2007. 5. Having perused the impugned order, I find that as far as the reasons for passing order of recovery against the retirement dues of the petitioner’s husband are concerned, the order is sans it, inasmuch as, there is no reference to any show-cause notice, as has been argued by learned counsel for the respondent. Besides, I also find that heads of recovery which have been shown except item No. 3, it is not clear as to what loss is sought to be covered by the impugned recovery from the dues of the deceased husband of the petitioner. As far as, item No. 3 is concerned, it is with regard to pay revision and fixation. 6. In cases of wrong fixation of pay where employee has not been responsible, no recovery can be permitted after lapse of long time and that too from the dues that widow is entitled due to loss of her husband in harness. 7. As far as, item No. 3 is concerned, it is with regard to pay revision and fixation. 6. In cases of wrong fixation of pay where employee has not been responsible, no recovery can be permitted after lapse of long time and that too from the dues that widow is entitled due to loss of her husband in harness. 7. Supreme Court on this very above ground, refused to interfere in the order of High Court, quashing recovery from pension of an employee of Kerala State Road Transport Corporation in case of Kerala State Road Transport Corporation v. Varghese, (2003) 12 SCC 293 , observing that recovery after retirement amounts to cut from retiral dues and causes irreparable loss and injury to a retired employee, as retirement dues are the only source of livelihood. Apex Court in the case of Ram Dayal Rai v. Jharkhand State Electricity Board and others, (2005) 3 SCC 501 , held that even 5% cut out from the total amount of pension payable to the appellant was an irreparable loss and injury. Court in this case while dealing with a recovery due to overstay in official accommodation, had held: “If the pensioner’s benefit is cut at 5% out of the total amount of pension payable to the appellant, the appellant will suffer an irreparable loss and injury since, after retirement, the pensionary benefit is the only amount available to eke out a livelihood for the retired employees of the Government.” 8. Laying down the parameters borne on principles when an act of recovery from a retired employee can be held iniquitous and arbitrary, the Apex Court in State of Punjab v. Rafiq Masih, (2015) 4 SCC 334 , observed by para 16 thus: “16. This Court in Syed Abdul Qadir v. State of Bihar (supra) held as follows: “59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.” (emphasis supplied) Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir’s case (supra), that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee’s retirement, or within one year of the date of his retirement on superannuation.” 9. And in its ultimate direction vide paragraph No. 18, the Court held that: “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.” (Emphasis supplied) 10. Applying the above principles to the facts of the present case, I find that the employee has died in harness on 30.11.2007 and during his lifetime, except issuing show-cause on 5.10.2007, nothing further was done as even no inquiry was constituted to bring home charge. I am of the opinion that any recovery of amount as under miscellaneous head from the gratuity/pension amount due to the widow will be inequitous and too harsh. I am of the opinion that any recovery of amount as under miscellaneous head from the gratuity/pension amount due to the widow will be inequitous and too harsh. In the absence of any finding of any loss to the department, recovery on the basis of mere show-cause given to the deceased employee in some earlier part of time, the dues to which a widow was entitled would be too prejudicial to be sustained with. Any action which has adverse civil consequences must stand the test of being just and fair on one hand and equitable on the other. The widow, who lost her husband while in service, gratuity, family pension etc. are the only source of livelihood and recovery from such amount to meet the hypothetical loss to the department at the end of the deceased employee while he was in service, cannot be justified. 11. Similarly again, recovery of an amount from the dues of deceased employee to which his widow is entitled, on the ground that he was paid an excess amount due to wrong fixation of pay cannot be justified after his death. Moreover, in the absence of any finding forthcoming that deceased employee was wrongly benefited for his misrepresentation and fraud, no such amount already paid is liable to be recovered. 12. In view of the above, writ petition succeeds and is allowed. The impugned order dated 23.5.2009 (Annexure 5 to the writ petition) directing for recovery and the consequential order dated 25.9.2009 are hereby quashed. The third respondent is directed to immediately pay all the dues of her late husband to the petitioner which are admissible and have accrued to her, positively within a period of two months from the date of production of certified copy of this order.