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Allahabad High Court · body

2023 DIGILAW 980 (ALL)

State of U. P. v. Ram Ji Singh

2023-04-11

MANOJ KUMAR GUPTA, PRASHANT KUMAR

body2023
JUDGMENT : 1. The instant appeal is directed against the order of learned Single Judge dated 22.11.2022 by which the writ petition filed by the sole respondent (hereinafter referred to as the "writ petitioner") was allowed and direction was issued to refund Rs.3,46,804/- to him. The amount aforesaid is the sum deducted by the State from his pensionary benefits towards house rent allowance alleged to be wrongly paid to him while in service. The writ court in issuing the said direction, has placed reliance on the judgement of the Supreme Court in State of Punjab and others v. Rafiq Masih (White Washer), 2015 (4) SCC 334 . 2. The facts in brief are that the writ petitioner retired on 30.06.2016 from the post of Teleprinter Operator at Collectorate, Allahabad upon attaining age of superannuation. During his service tenure, he was allotted an official accommodation in the year 1981. According to the case of the appellants, the writ petitioner did not deposit house rent in terms of the allotment letter and at the same time was also given house rent allowance every month until his retirement. On 03.10.2016 i.e. after retirement, the A.D.M, City, Allahabad passed an order holding that the petitioner had received Rs.2,88,644/- as house rent allowance in an irregular manner and in addition, according to the norms, Rs.58,260/- would be rent due till 30th June, 2016, consequently, he was directed to deposit Rs.3,46,904/- in government treasury within three days failing which, the same would be recovered from his pensionary benefits. As the writ petitioner did not deposit the amount in government treasury, it was deducted from his pensionary benefits. The representation filed by the petitioner was rejected by the District Magistrate by order dated 22.05.2020 impugned in the writ petition. 3. Shri Ramanand Pandey, learned Additional Chief Standing Counsel appearing for the State submitted that under Government Order dated 15.12.1981, the writ petitioner was liable to pay rent of the government accommodation he was occupying during his service tenure. He further submits that in case, an employee occupying a government accommodation does not pay rent then he would not be entitled to house rent allowance. He further submits that in case, an employee occupying a government accommodation does not pay rent then he would not be entitled to house rent allowance. It is submitted that by mistake the State paid house rent allowance to the writ petitioner but as soon as the said mistake was discovered, the Additional District Magistrate, City passed the order directing the writ petitioner to refund the amount and when it was not refunded, the amount was rightly deducted from the pensionary benefits. It is sought to be contended that the judgement of the Supreme Court in Rafiq Masih would not apply to the facts of instant case as that was a case where there was wrong fixation of salary while the instant matter relates to house rent allowance and is governed by a government order. 4. On the other hand, learned counsel for the respondent (writ petitioner) submits that the judgement of the Supreme Court applies on all fours to the instant case. It is urged that there is no finding in the impugned order that any fraud or misrepresentation was played by the writ petitioner at any stage. He submits that the impugned recovery after retirement of the writ petitioner had caused grave injury to him and the writ court has rightly directed the appellants to release the said amount. 5. The judgement of the Supreme Court in Rafiq Masih (supra) is not confined to cases where there is wrong fixation of salary and as a result whereof some excess amount was paid to an employee. In fact, the Supreme Court had decided a batch of petitions where the larger issue was whether an employer is entitled to recover monetary benefits mistakenly given to the employee. The mistake could have occurred on account of a variety of reasons; including the grant of a status, which the concerned employee was not entitled to; or payment of salary in a higher scale, than in consonance of the right of the concerned employee; or because of a wrongful fixation of salary of the employee, consequent upon the upward revision of pay-scales or for having been granted allowances, for which the concerned employee was not authorised. It has been held that in all such cases, the employer would not recover the amount provided the excess payment was not attributable to any fraud or misrepresentation by the employee. It has been held that in all such cases, the employer would not recover the amount provided the excess payment was not attributable to any fraud or misrepresentation by the employee. The categories which have been delineated by the Supreme Court in paragraph 12 of the judgement are as follows :- "(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 recovery." 6. The Supreme Court, on a conspectus of different situations arising before it, specified four different categories where it would be harsh and iniquitous to permit recovery of excess payment of the monetary benefits. While specifying these categories, the Supreme Court was conscious of the fact that it was not possible to account for all eventualities. Accordingly, a fifth category was carved out where it was left to the wisdom of the Court not to permit recovery if it comes to the conclusion that it would be harsh, arbitrary or iniquitous. 7. In the instant case, indisputably, the writ petitioner was a Class-III employee and, therefore, would fall under first category. The recovery was sought to be made after his retirement and consequently, he would also be covered under the second category. The amount sought to be recovered was allegedly paid to the writ petitioner during the period spread over 35 years while in service and, therefore, he would also be covered by Clause (iii). The recovery was sought to be made after his retirement and consequently, he would also be covered under the second category. The amount sought to be recovered was allegedly paid to the writ petitioner during the period spread over 35 years while in service and, therefore, he would also be covered by Clause (iii). The small amount of house rent allowance that was paid to the writ petitioner on a monthly basis in last 35 years when recovered in lump sum post-retirement was definitely an action which was harsh and iniquitous and this would be covered under Clause (v) as well. 8. We find no merit in the submission that since the payment to the petitioner was by way of house rent allowance and, therefore it would not be covered by the judgement of Supreme Court inasmuch the judgement of the Supreme Court also covers cases relating to wrong or excess payment of allowances. If there was any default in payment of rent, its recovery, if permissible at this distance of time would be a separate and distinct cause of action, but it was wholly arbitrary and illegal to recover the house rent allowance, paid over the years, without any fraud or misrepresentation on part of the employee. 9. Learned Standing Counsel tried to place reliance on the judgement of Supreme Court in High Court of Punjab and Haryana v. Jagdev Singh reported in 2015 (4) SCC 334 . It was a case where the employee was in judicial service and at the time of fixation of revised pay-scale and grant of selection grade, he furnished an undertaking to refund excess payment, in terms of the applicable service rules, if any mistake is detected subsequently. The Supreme Court in view of the specific condition in the notification that the employee would be liable to refund excess payment if discovered subsequently followed by the undertaking furnished by the employee in terms of the said stipulation, held that the principles enunciated in proposition no. (ii) in the case of Rafiq Masih would not apply. The observations made in this regard is extracted below :- "The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. (ii) in the case of Rafiq Masih would not apply. The observations made in this regard is extracted below :- "The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking." 10. In the instant case, there was no undertaking furnished by the petitioner for refunding the house rent allowance which was deducted from his post retiral benefits. Therefore, we are of the considered opinion that the judgement relied upon by learned counsel for the appellants would be of no help to him. The learned Single Judge was right in applying the principles laid down in Rafiq Masih in directing refund of the amount. 11. In the result, the appeal lacks merit and is accordingly, dismissed.