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Allahabad High Court · body

2020 DIGILAW 506 (ALL)

Krishna Srivastava v. State of U. P.

2020-02-14

PIYUSH AGRAWAL

body2020
JUDGMENT : 1. This writ petition has been filed, inter alia, for the following reliefs:- “(i) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondent no. 4to refund the illegally deducted amount of Rs. 3,74,745/- from G.P.F. of the petitioner with interest.” 2. Heard learned counsel for the petitioner, learned standing counsel for the State – respondents and Shri Anoop Kumar, holding brief of Shri Arun Kumar, learned counsel for the respondent nos. 4, 5 & 6. 3. The brief facts of the case are that the petitioner was appointed as Assistant Teacher in Ramrati Devi Kanya Junior High School, Maniram Maharajganj, Gorakhpu (hereinafter referred to as, ‘the Institution’) vide appointment letter dated 16.10.1991. The Institution was recognized in the year 1988 and came into the grant-in-aid list in the year 2006. It is averred that the petitioner continued on the post of Assistant Teacher. After the coming into the grant-in-aid list, as per the rules & regulations, the GPF as well as other fund were continuously deducted from the salary of the petitioner and the petitioner worked for 6 to 7 years pursuant to coming into the Institution under the grant-in-aid list. The petitioner superannuated on 30.06.2013 from the post of Assistant Teacher. 4. It is further averred that after the petitioner’s retirement, when she was not getting the retiral benefits, approached the authority concerned, but in vain. It is further averred that on 03.12.2013, on the Tehsil Diwas, the petitioner personally apprised the concerned Officer about her grievances, but in spite of the direction for granting retiral benefits, no action has been taken by the authority concerned for redressal of the petitioner’s grievance. When no heed was paid to the grievance of the petitioner, she approached the Lokayukt, Uttar Pradesh on 18.02.2014 against the arbitrary and prejudicial action of the respondents. On the notice of the Lokayukt, the respondent nos. 4, 5 & 6, vide letter dated 21.04.2014, stated that a report was called from the Finance & Account Officer, in which it came to the notice that the salary of the petitioner was being paid more than the exact salary by wrong calculation and therefore, after her retirement, the recovery was to be made from her GPF amount, which was above Rs. 4,00,000/-. It is further averred that out of Rs. 4,12,414/-, a sum of Rs. 4,00,000/-. It is further averred that out of Rs. 4,12,414/-, a sum of Rs. 3,74,745/-has been deducted from the petitioner’s GPF account and only Rs. 44,769/-was paid to the petitioner. It is further averred that the said amount had been withdrawn/ adjusted without the consent of the petitioner. Hence, the present writ petition seeking refund of illegal deduction of Rs. 3,74,745/-from the GPF account of the petitioner, along with interest. 5. Learned counsel for the petitioner submits that the petitioner, who was appointed in the year 1988 on the post of Assistant Teacher in the Institution, had been working as Assistant Teacher even after the Institution came under the grant-in-aid list in the year 2006 on the same post. He further submits that it is not the case of the respondents that the alleged excess payment has been made to the petitioner by misrepresenting or playing fraud for getting the salary on the post of Assistant Teacher for which she was not entitled for. It is further submitted that re-fixation of salary has been done without providing any opportunity of being heard to the petitioner. Learned counsel for the petitioner has placed reliance upon the judgement of the Apex Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 332 . He prays that a direction may be issued to the respondents for refund of Rs. 3,74,745/-, along with interest, which was illegally deducted from the GPF account of the petitioner. 6. Per contra, learned counsel for the respondents submits that before taking action against the petitioner, notices were issued, but the petitioner chose not to reply the said notices. Therefore, the deduction has rightly been made as the amount has wrongly been paid to the petitioner, for which she was not entitled to and under such circumstances, re-fixation was done and order was passed for deducting the amount from the petitioner’s GPF account. Learned counsel for the respondents tries to justify the action of the respondents. 7. The Court has considered the rival submissions of the learned counsel for the parties and has perused the record. 8. The record reveals that the petitioner was appointed as an Assistant Teacher in the Institution in the year 1988 and worked till the date of her superannuation, i.e., 30.06.2013, on the said post. 7. The Court has considered the rival submissions of the learned counsel for the parties and has perused the record. 8. The record reveals that the petitioner was appointed as an Assistant Teacher in the Institution in the year 1988 and worked till the date of her superannuation, i.e., 30.06.2013, on the said post. During the said period, the salary of the petitioner has been paid without any break. The record further reveals that the salary of the petitioner was being paid as per the Rules & regulations applicable at that time. The petitioner is entitled for the retiral benefit after the date of superannuation. It is also not the case of the respondents that the petitioner has misrepresented or played fraud for getting the pay scale, for which she was not entitled to. The record further reveals that the notices alleged to have been issued by the Institution under the signature of the Principal of the Institution without there being any reference of any letter of respondent nos. 4 & 6, i.e., District Basic Education Officer, Gorakhpur and Finance & Account Officer, Basic Education, Gorakhpur. Letters have also been handwritten and without there being any number on it. The averment in the counter affidavit for issuance of notice to the petitioner has specifically been denied in the rejoinder affidavit in paragraph no. 4 thereof by the petitioner and specifically stated that no such show cause notice was ever received to the petitioner. The record further reveals that with regard to the alleged notice, which has stated to have been sent, no material has been brought on record to show that any such notice was issued by the respondent nos. 4 to 6 and how the same was dispatched and when received. In absence of such material on record, it cannot be presumed that the notice was given to the petitioner before making deduction of Rs. 3,74,745/- from GFP account of the petitioner. 9. The Apex Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 332 , has held that recovery from the employee would be impermissible in law after his retirement, while payments have been made mistakenly by an employer. 10. Para 12 of the aforesaid judgment reads as under: "12. 9. The Apex Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 332 , has held that recovery from the employee would be impermissible in law after his retirement, while payments have been made mistakenly by an employer. 10. Para 12 of the aforesaid judgment reads as under: "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." 11. Recently, this Court in the case of Brijendra Kumar Tripathi & Others Vs. (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." 11. Recently, this Court in the case of Brijendra Kumar Tripathi & Others Vs. State of U.P. & Others reported in 2019 (4) ADJ 690 (LB) has held as under:- “…….that the opposite parties have not provided the opportunity of hearing to the petitioners to place their case/defence in support of their fixation of pay by the erstwhile Rural Development Department and being so as well as keeping in view the facts of the case in hand that the pecuniary benefits earlier provided to the petitioners have been affected and serious pre-judice has been caused to the petitioners by the orders dated 11.05.2016, 13.06.2017 and 17.10.2017 as well as consequential orders of recovery of excess amount paid to the petitioners and the principle that an order which involves civil consequence must be passed after following principles of natural justice and after affording opportunity of hearing, this Court feels that orders dated 11.05.2016, 13.06.2016 and 17.10.2017 are unsustainable being violative to Article 14 of the Constitution of India as have been passed without providing opportunity of hearing to the petitioners and are against the principle of natural justice and fair play and as such, liable to be interfered by this Court.” 12. From the perusal of the aforesaid judgments, the position of law, which emerges, is that no recovery can be made from a retired employee without providing him/her an opportunity of hearing. Further, it is also impermissible in law to recover the amount of excess payment made for a period in excess of five years before the order of recovery is issued. In the case in hand, after the Institution has come under the grant-in-aid list in the year 2006, the petitioner continued in service for more than six years on the same post. After the Institution, in which the petitioner was working, came under the grant-in-aid list, the GPR as well as other funds of the petitioner were continuously deducted from her salary as per the Rules and regulations, which means that there was no dispute with regard to fixation of salary and payment made thereof to the petitioner. 13. After the Institution, in which the petitioner was working, came under the grant-in-aid list, the GPR as well as other funds of the petitioner were continuously deducted from her salary as per the Rules and regulations, which means that there was no dispute with regard to fixation of salary and payment made thereof to the petitioner. 13. In view of the aforesaid factual and legal position, no recovery can legally be made from the petitioner after her retirement on 30.06.2013. The amount, which has been recovered by way of deducting from the petitioner’s GPF account, is liable to be refunded, along with interest, to the petitioner. 14. In the result, the writ petition succeeds and is allowed. The District Basic Education Officer, Gorakhpur is directed to refund the deducted amount from the petitioner’s GPF, along with 6% per annum interest, within a period of one month from the date of production of a certified copy of this order. 15. The respondents are free to recover the amount of interest paid to the petitioner from the erring Officer(s) in accordance with law.