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2022 DIGILAW 1296 (ALL)

Om Pal Singh v. Meerut Development Authority

2022-08-16

SANGEETA CHANDRA

body2022
JUDGMENT : Sangeeta Chandra, J. Heard learned counsel for the petitioner, Sri Rajesh Kumar Pandey, learned counsel appearing on behalf of the Respondent Nos. 1 to 3 and learned Standing Counsel appearing on behalf of the State Respondent Nos. 4 and 5. 2. This petition has been filed by the petitioner challenging the Order dated 17.5.2019 passed by the Respondent Nos. 2 and the Order dated 3.6.2019 passed by the Respondent No. 3. 3. It is the case of the petitioner that he was appointed on the post of Lekhpal on 16.10.1978 in Meerut Development Authority and after completing 36 years and 8 months of service, retired on 30.6.2015. The respondent No. 2 approved the grant of Gratuity, GPF and Leave Encashment dues to the petitioner by his order dated 29.6.2015. However, it appears that an audit team was constituted which conducted an audit of the Meerut Development Authority of the Financial Year 2013-14 and submitted an objection with regard to payment of excess salary to the petitioner on account of wrong pay fixation made by the department. On account of such audit objection, it was reported that Rs. 7,08,502/- had been paid in excess to the petitioner as salary and alowgwith allowances. The total amount paid in excess came out to be Rs. 10,43,724/-. Such audit objections were directed by the Vice Chairman, Meerut Development Authority to be examined by a Committee by his order dated 31.1.2018. The Committee also submitted a report on 16.3.2019 saying that the petitioner was appointed in the Development Authority, he could not have been given the salary of Lekhpal as admissible to the Revenue Department, and therefore, recommended the audit objections to be accepted and consequent revision in pay and allowances and final pension payment order to be made and the excess payment to be recovered from the retiral dues of the petitioner. As a result of such report being submitted on 16.3.2019, an order dated 17.5.2019 was passed by the respondent No. 2 directing recovery of Rs. 10,43,724/- from the Gratuity and Leave Encashment of the petitioner. Consequently, recovery was made of Rs. 8,43,025/- from the Gratuity and Leave Encashment dues of the petitioner, but Rs. 02,00,699/- remained to be adjusted for which a recovery order was passed on 3.6.2019 by the Respondent No. 3 directing the petitioner deposit such amount of Rs. 10,43,724/- from the Gratuity and Leave Encashment of the petitioner. Consequently, recovery was made of Rs. 8,43,025/- from the Gratuity and Leave Encashment dues of the petitioner, but Rs. 02,00,699/- remained to be adjusted for which a recovery order was passed on 3.6.2019 by the Respondent No. 3 directing the petitioner deposit such amount of Rs. 02,00,699/- in the Meerut Development Authority or else the same may be recovered by the Meerut Development Authority by other means. 4. It has been argued by the learned counsel for the petitioner that the respondent No. 1 proceeded to fix final pension of the petitioner by making amendment in the provisional pension being granted to the petitioner and reduce the amount of pension from Rs. 10,075 to Rs. 7,505/- retrospectively w.e.f. 1.7.2015. The petitioner is a retired Class-III employee, who has been made to suffer by the Respondents Authority without any fault on his part by recovering the excess amount paid to him from his pension, Gratuity and other retirement dues. 5. It has been argued that the Hon'ble Supreme Court in the case of State of Punjab and others v. Rafiq Masih, AIR 2015 SC 796, has observed that recovery from Class-III and Class-IV employees much after the date of their retirement for any excess payment made to them during their course of service would be inequitable. 6. It has also been argued by the learned counsel for the petitioner that this Court in Writ-A No. 14330 of 2019, 'Suresh Chandra v. State of U.P. and 4 others', relating to an identically situated Lekhpal in Meerut Development Authority had allowed the Writ Petition on 11.7.2022 by referring to the observations made by the Hon'ble Supreme Court in the case of State of Punjab and others v. Rafiq Masih (Supra), a copy of the order dated 11.7.2022 passed by the Coordinate Bench in the case of Suresh Chandra has been filed by the petitioner before this Court by way of an amendment application. 7. The Meerut Development Authority in its counter-affidavit has mentioned about the audit objections and the constitution of the committee by the Vice Chairman by its order dated 17.9.2018 which committee found that the then Vice Chairman by his order dated 15.11.1994, without taking any approval from the Government had implemented the pay scale of Rs. 7. The Meerut Development Authority in its counter-affidavit has mentioned about the audit objections and the constitution of the committee by the Vice Chairman by its order dated 17.9.2018 which committee found that the then Vice Chairman by his order dated 15.11.1994, without taking any approval from the Government had implemented the pay scale of Rs. 950-1,500/- which was a pay scale of Lekhpal of Revenue Department to Lekhpals of Meerut Development Authority actually they should have been given pay scale of Rs. 825-1,200/- only. The petitioner was thereafter given promotional pay scale of Tax and Revenue Officer of the Revenue Department of Rs. 1,350-2200/- instead of promotional pay scale of Tax and Revenue Officer of the Meerut Development Authority which was only Rs. 975-1,660/-. The petitioner was again granted second promotional pay scale of Naib Tehsildar of Revenue Department of Rs. 5,500-9,000/- instead of next pay scale of Rs. 4,000-6,000/- as was admissible for employees of Meerut Development Authority. Such pay scales were given to the petitioner without taking sanction from the Government, therefore, the Department of Local Funds, Audit & Accounts raised an objection and recommended recovery of Rs. 07,08,502/- from the petitioner paid in excess. In consequence of the recommendations of the committee formed by the Vice Chairman and Government Order dated 20.7.2018, the Pension Payment Order of the petitioner has been revised and the amount paid in excess has been recovered from his Gratuity and Leave Encashment dues. The remaining amount is yet to be recovered, and therefore, the recovery order has been issued by the respondent No. 3. 8. Learned counsel for the State Respondents has argued that the Supreme Court in the case of State of Haryana v. Jagdev Singh, 2016 (14) SCC 267 , has permitted recovery of excess payment to employees if at the time of pay fixation an undertaking was given by them that the authorities would be free to recover any excess payment made to them when discovered subsequently. 9. However, it is not the case of the Meerut Development Authority that any undertaking was sought from the petitioner or was given by him at the time of his initial pay fixation as far back as in 1986, when the Revenue Department's Lekhpal pay scale of Rs 950-1,500/- was given to him, and consequently, next promotional pay scale of higher pay scale were also given to him. In view of the observations made by the Supreme Court in the case of State of Punjab and others v. Rafiq Masih(White Washer) and others, AIR 2015 SC 796 and also in the case of Thomas Daniel v. State of Kerala, 2022 SCC Online SC 536, wherein the excess payment if any paid to the petitioner due to the fault on the part of the Authority themselves without any misrepresentation of fraud having been played by the petitioner cannot be now recovered from him. 10. The impugned order of recovery is set aside. However, it shall be open for the respondent to give him revised pension as per the correct pay fixation by issuing revised Pension Payment Order. 11. The Writ Petition is allowed to this extent. The already recovered amount shall be refunded to the petitioner within a period of two months from the date a copy of this order is produced before them.