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2024 DIGILAW 1376 (ALL)

Anil Kumar Srivastava v. State of Uttar Pradesh

2024-05-22

J.J.MUNIR

body2024
JUDGMENT : J.J. MUNIR, J. 1. The question involved in this petition is: Whether in case of a retired Group 'D' employee, any excess payment of emoluments made during the period of service, which he consents to refund out of his dues at a later point of time, if found erroneous, can be deducted from the employee's post retiral benefits? The other question is: Can recovery of emoluments paid by the employer due to an erroneous fixation be made on a mere objection by the Local Fund Audit, without opportunity of hearing to the employee and a proper order made to that effect? 2. The petitioner was a Chungi Munshi, a Group 'D' employee with the Nagar Palika Parishad, Basti. He attained the age of superannuation and retired from service on 30.04.2022. At the time of his retirement, the petitioner was in receipt of a basic pay of Rs.53,600/-. The petitioner says that he has never been subjected to any disciplinary action and his service record is unblemished. The Commissioner, Basti Division, Basti addressed a memo dated 21.07.2023 to the Branch Manager, State Bank of India, Basti, asking the latter, to pay the petitioner his gratuity in the sum of Rs.9,46,308/-. He also addressed another memo of the same date for payment of the petitioner's pension, also addressed to the Branch Manager, State Bank of India, Basti. These sums of money were not paid to the petitioner and, accordingly, the petitioner represented in the matter to the Executive Officer, Nagar Palika Parishad, Basti for the payment of his post retiral dues, including pension, gratuity, leave encashment, group insurance etc. through representations dated 30.05.2022, 15.12.2022 and 28.02.2023. The petitioner’s claim is that until date of institution of this writ petition, he has not been paid his pension and some retiral dues amounting to a sum of Rs.9,09,828/-. Others that remain outstanding are dues on account of leave encashment, gratuity and arrears of pension. 3. The petitioner complains of non-payment of his post retiral benefits and cites violation of Articles 21, 31(1) and 300-A of the Constitution. It is submitted that the respondents have no authority to withhold the arrears of his pension and other post retiral benefits. The petitioner urges that he has no other source of income and suffering immensely on account of non-payment of his post retiral benefits. 4. It is submitted that the respondents have no authority to withhold the arrears of his pension and other post retiral benefits. The petitioner urges that he has no other source of income and suffering immensely on account of non-payment of his post retiral benefits. 4. Notice of motion was issued in this case on 19.10.2023 and the Executive Officer was ordered to file his personal affidavit, showing cause. The payment of the petitioner's post retiral benefits was resisted by the Executive Officer through his personal affidavit taken note of in the order dated 11.12.2023, on ground that he has been paid in excess towards his salary at different points of time, while in service. The stand was that the petitioner would not receive anything beyond a sum of Rs.9,09,828/-, already paid to him. It was pointed out in the order dated 11.12.2023 that the petitioner had not, in any manner, contributed to the wrong calculation of his salary, and, therefore, cause ought to be shown by the respondents how they can deduct excess payment alleged from his post retiral dues. The respondents' attention was invited to the law laid down by the Supreme Court in State of Punjab and others v. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334 . 5. A further personal affidavit was filed by the Officiating Executive Officer, Nagar Palika Parishad, Basti, who happened to be the Sub-Divisional Magistrate (Judicial), Sadar, Basti at the time. In his affidavit, the stand taken is that the Deputy Director, Local Fund Audit, Basti Division, Basti had provided the petitioner promotional pay scale/ ACP on conditions that if in future any mistake is found in the calculation or fixation of the pay scale, then excess payment, if any, made may be deducted from the petitioner's emoluments. In pursuance to the aforesaid stand of the Nagar Palika, the petitioner accepted the condition and furnished a letter dated 09.01.2017 to the Executive Officer that if on account of provision of the ACP, the payment made is found in excess of entitlement, the excess payment may be recovered from his dues in future. The petitioner's papers were forwarded to the Deputy Director, Local Fund Audit, Basti Division, Basti on 16.01.2023. The petitioner's papers were forwarded to the Deputy Director, Local Fund Audit, Basti Division, Basti on 16.01.2023. The Deputy Director, Local Fund Audit, Basti by his memo dated 30.01.2023 pointed out irregularity in the fixation of his salary and payment of the next higher grade pay of Rs.2000/-w.e.f. 01.01.2006. The pension papers have been submitted on the last basic pay of Rs.53,600/-, whereas the last basic pay drawn by the petitioner was a sum of Rs.41,600/-. It is on account of the said objections raised by the Deputy Director, Local Fund Account, Examination Department, U.P., Basti Division, Basti that an excess payment of Rs.10,10,792/-has been found made to the petitioner. The stand taken is that the earlier revised pay on account of the ACP was provided to the petitioner, subject to the condition that if at a latter date, it is found to be erroneous, it would be recovered from his emoluments. The respondents has a right to deduct from the petitioner's post retiral benefits. On the basis of two affidavits filed on behalf of respondent No. 5, it was recorded by this Court that the affidavits would be treated as counter affidavits. Accordingly, on 19.12.2023, the parties having exchanged affidavit, the petition was admitted to hearing, which proceeded forthwith. Judgment was reserved. 6. Heard Mr. Shrawan Kumar Tripathi, learned Counsel for the petitioner, Mr. Anand Kumar Srivastava, learned Counsel appearing on behalf of respondent No. 5 and Mr. Dinesh Kumar Singh, learned Additional Chief Standing Counsel appearing on behalf of respondent Nos.1 to 4. 7. Upon hearing learned Counsel for the parties, this Court considers it appropriate to survey the law on the first of the two questions, noticed in the opening part of this judgment. This question has vigorously engaged the attention of the High Courts across the country, including the Supreme Court, over a long period of time, because it is commonplace for employers to come up with a case that the fixation done for an employee, according to which he was remunerated while in service, was indeed fallacious. The argument that then stems from the typical vantage of an Auditor or a Bureaucrat is that any excess payment from the Exchequer, which under the rules is more than the lawful remuneration of an employee, must be recovered at all costs and restored to State corpus. The argument that then stems from the typical vantage of an Auditor or a Bureaucrat is that any excess payment from the Exchequer, which under the rules is more than the lawful remuneration of an employee, must be recovered at all costs and restored to State corpus. This vantage does not see any equity about money paid in excess and speaks for strict accounting and recovery, without any notion of equity, equality, hardship or debilitating consequences, that may ensue for a retired or low paid employee, or a man placed in the disadvantageous circumstances of old age and dwindling income. 8. It is true that the subtler and more sensitive constitutional ideas of equality, the welfare obligation of the State or the dominant position of the employer, cannot be permitted to boomerang into a fraud on the Exchequer, where employees, in connivance with others, may get deliberate wrong fixation done and then plead equity to avoid recovery. This is never the intention of the law; or of equity. Genuine difficulties arise when in the fixation of pay-scales, revision of emoluments, addition of increments, award of ACPs and pay revisions in consequence, some error of accounting, deliberate or callous, on the Establishment's part, leads to an employee drawing excess emoluments over years of service that he renders. Normally, the error ought to be detected early, because there are periodical audits, both internal and by the Government Audit Department. If detected early, a little bit of excess payment made, can conveniently be recovered and is never frowned upon by the law. It does, however, receive attention of the law if after payment of emoluments, carrying a mistaken calculation, higher than an employee's entitlement, he is asked to pay back long afterwards, particularly, close to the eve of his retirement or actually after retirement. 9. This is a time when the unremedied mistaken calculation has led to fat figures to recover, placing all burden on the frail shoulders of an employee, already retired or steering towards his retirement. The question received the most wholesome treatment in Rafiq Masih (supra), where at the cost of a somewhat copious reference to the remarks, this Court thinks that these must be quoted. In Rafiq Masih, it was observed: “8. The question received the most wholesome treatment in Rafiq Masih (supra), where at the cost of a somewhat copious reference to the remarks, this Court thinks that these must be quoted. In Rafiq Masih, it was observed: “8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover. 9. The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality can be found in Articles 14 to 18 contained in Part III of the Constitution of India, dealing with “fundamental rights.” These articles of the Constitution, besides assuring equality before the law and equal protection of the laws, also disallow discrimination with the object of achieving equality, in matters of employment; abolish untouchability, to upgrade the social status of an ostracised section of the society; and extinguish titles, to scale down the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39-A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the “directive principles of State policy.” These articles of the Constitution of India contain a mandate to the State requiring it to assure a social order providing justice—social, economic and political, by inter alia minimising monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker sections. 10. 10. In view of the aforestated constitutional mandate, equity and good conscience in the matter of livelihood of the people of this country has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India. 11. For the above determination, we shall refer to some precedents of this Court wherein the question of recovery of the excess amount paid to the employees, came up for consideration, and this Court disallowed the same. These are situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters. 12. Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 : (2009) 1 SCC (L&S) 744, wherein this Court recorded the following observation in Para 58: (SCC p. 491) “58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. [See Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248, Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121, Union of India v. M. Bhaskar, (1996) 4 SCC 416 : 1996 SCC (L&S) 967, V. Gangaram v. Director, (1997) 6 SCC 139 : 1997 SCC (L&S) 1652, B.J. Akkara v. Govt. of India, (2006) 11 SCC 709 : (2007) 1 SCC (L&S) 529, Purshottam Lal Das v. State of Bihar, (2006) 11 SCC 492 : (2007) 1 SCC (L&S) 508, Punjab National Bank v. Manjeet Singh, (2006) 8 SCC 647 : (2007) 1 SCC (L&S) 16 and Bihar SEB v. Bijay Bhadur, (2000) 10 SCC 99 : 2000 SCC (L&S) 394].” (Emphasis supplied) 13. First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 : (2009) 1 SCC (L&S) 744 recognised, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee. 15. Examining a similar proposition, this Court in B.J. Akkara v. Govt. of India, (2006) 11 SCC 709 : (2007) 1 SCC (L&S) 529 observed as under: (SCC pp. 728-729, Para 28) “28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.” (Emphasis supplied) A perusal of the aforesaid observations made by this Court in B.J. Akkara v. Govt. of India, (2006) 11 SCC 709 : (2007) 1 SCC (L&S) 529 reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from the employees in lower rung of service, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that the employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are therefore satisfied in concluding, that such recovery from employees belonging to the lower rungs (i.e. Class III and Class IV—sometimes denoted as Group C and Group D) of service, should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India. 16. This Court in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 : (2009) 1 SCC (L&S) 744 held as follows: (SCC pp. 491-492, Para 59) “59. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India. 16. This Court in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 : (2009) 1 SCC (L&S) 744 held as follows: (SCC pp. 491-492, Para 59) “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. 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. The 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 v. State of Bihar, (2009) 3 SCC 475 : (2009) 1 SCC (L&S) 744, that recovery of excess payments, made from the 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. 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. 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 from the date of his retirement on superannuation.” 10. The Court in Rafiq Masih laid down specific contingencies or class of cases, where recoveries by the employer would not be countenanced by the law. These have been summarized in Rafiq Masih thus: “18. 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the 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. (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. The question again engaged the attention of the Supreme Court in Thomas Daniel v. State of Kerala and others, 2022 SCC Online SC 536, where the principles in Rafiq Masih were endorsed by their Lordships. 12. An exception, however, was carved out to the enumerated principles in Rafiq Masih, where recovery by the employer of any excess payment made would be permissible. This was the holding of the Supreme Court in High Court of Punjab & Haryana and others v. Jagdev Singh, (2016) 14 SCC 267 . 13. The facts in Jagdev Singh (supra) can best be recapitulated in the words of their Lordships, that occur in the opening part of the report. In Jagdev Singh, the facts (quoted from the report) read: “2. The facts lie in a narrow compass. The respondent was appointed as a Civil Judge (Junior Division) on 16-7-1987 and was promoted as Additional Civil Judge on 28-8-1997 in the judicial service of the State. By Notification dated 28-9-2001, a pay scale of Rs 10,000-325-15,200 (senior scale) was allowed under the Haryana Civil Service (Judicial Branch) and Haryana Superior Judicial Service Revised Pay Rules, 2001. Under the Rules, each officer was required to submit an undertaking that any excess which may be found to have been paid will be refunded to the Government either by adjustment against future payments due or otherwise. 3. The respondent furnished an undertaking and was granted the revised pay scale and selection grade of Rs 14,300-400-18,000-300. While opting for the revised pay scale, the respondent undertook to refund any excess payment if it was so detected and demanded subsequently. The revised pay scale in the selection grade was allowed to the respondent on 7-1-2002. 4. The respondent was placed under suspension on 19-8-2002 and eventually, was compulsorily retired from service on 12-2-2003. 5. While opting for the revised pay scale, the respondent undertook to refund any excess payment if it was so detected and demanded subsequently. The revised pay scale in the selection grade was allowed to the respondent on 7-1-2002. 4. The respondent was placed under suspension on 19-8-2002 and eventually, was compulsorily retired from service on 12-2-2003. 5. In the meantime, this Court in Civil Writ (C) No. 1022 of 1989 accepted the recommendations of the First National Judicial Pay Commission (Shetty Commission). Thereupon, the Haryana Civil Services (Judicial Branch) and Haryana Superior Judicial Service Revised Pay Rules, 2003 were notified on 7-5-2003. 6. In view thereof the pay scales of judicial officers in Haryana were once again revised with effect from 1-1-1996. An exercise was undertaken for adjustment of excess payments made to judicial officers, following the notification of the revised pay rules. On 18-2-2004, a letter for the recovery of an amount of Rs 1,22,003 was served upon the respondent pursuant to the direction of the Registrar of the High Court. 7. The respondent challenged the action for recovery in writ proceedings under Article 226. The petition was allowed by the impugned judgment of the High Court. The High Court found substance in the grievance of the respondent that the excess payment made to him towards salary and allowance prior to his retirement could not be recovered at that stage, there being no fraud or misrepresentation on his part.” 14. After referring to the five class of cases in Rafiq Masih, where recovery of excess emoluments paid cannot be made from an employee, an exception was carved out in Jagdev Singh by their Lordships in the following words: “11. 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.” 15. It is this exception, which has been widely harped upon by the learned Counsel for the respondents to say that the principles in Rafiq Masih, in none of the enumerated categories, can be availed by the petitioner to avoid recovery. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.” 15. It is this exception, which has been widely harped upon by the learned Counsel for the respondents to say that the principles in Rafiq Masih, in none of the enumerated categories, can be availed by the petitioner to avoid recovery. It is submitted that it is so because the petitioner has furnished an undertaking to the Executive Officer vide his letter dated 09.01.2007 to refund any sum of money paid on account of provision of ACP, if found in excess of his entitlement. The petitioner had undertaken, according to the learned Counsel for the respondents, that excess payment, if any, on account of the ACP awarded, be recovered from his dues in future. 16. The learned Counsel for the respondents has attempted to argue that an undertaking to this effect works as an estoppel against the employee, circumstanced as the petitioner, who having undertaken to refund any excess remuneration in writing to the employer, while availing the benefit of the ACP, cannot later on turn around and bank upon any equity to relieve him from recovery. 17. It may be noticed, at the cost of some repetition, that there are five distinct categories of cases, where recoveries from employees, who receive in excess of their entitlement, but without any involvement of fraud on their part, are spared in Rafiq Masih. Jagdev Singh has carved out an exception specifically with reference to one of the five categories referred to in the report as proposition (ii). It is remarked that the officer concerned was put on notice that any payment found in excess of entitlement would be required to be refunded by him, and further, he had furnished an undertaking to that effect while opting for the revised pay-scale. What is of importance is that the exception based on the furnishing of an undertaking to refund is confined to one of the five categories that Rafiq Masih has laid down, where recovery ought not be made. This category relates to retired employees or employees, who are due to retire within one year of the recovery order. Jagdev Singh does not extend the principle to other categories of cases. This category relates to retired employees or employees, who are due to retire within one year of the recovery order. Jagdev Singh does not extend the principle to other categories of cases. It could be thought that on facts in Jagdev Singh, after all the case would fall in category (ii) of those enumerated in Rafiq Masih, and, therefore, the principle was not extended to other categories as that question never arose. But, it is equally plausible to think that in laying down these categories, Group 'C' and ‘D’ employees, including those retiring, who have been placed in category (i), have been regarded as a distinct and different class of individuals. This is for the reason that the emoluments, that Group 'C' and ‘D’ employees receive, are quite modest compared to officers and employees in the higher echelons. The recovery from this class of employees all of a sudden at the time of retirement, or may be at any other stage, when remuneration wrongfully paid has accumulated to a big sum of money, may have far more severe consequences on the employees' live and that of his family members than those better off. 18. This Court would, therefore, think that the exception in Jagdev Singh was confined to the second category of cases in Rafiq Masih, not merely because the case was concerned with that category, but the exception was thought fit to be restricted to one of the five categories. This question was examined in a Bench decision of the Himachal Pradesh High Court in Bhag Chand v. State of Himachal Pradesh and others, CWPOA No. 6244 of 2020, decided on 28.09.2023. The facts, in the backdrop of which the question arose before their Lordships of the Division Bench in Bhag Chand (supra), are set out in the opening paragraph of the judgment, which read: “The petitioner in the present case (Junior Engineer Class-III), was given monetary benefits, which were in excess of the petitioner’s entitlement. These benefits flowed to the petitioner, consequent upon a mistake committed by the competent authority concerned, in determining the emoluments payable to the petitioner. The mistake occurred on account of reason of wrong pay fixation, than in consonance of the right of the employee concerned, for which the employee concerned was not entitled. The aforesaid wrongful benefits were given to the petitioner w.e.f. 2006. The mistake occurred on account of reason of wrong pay fixation, than in consonance of the right of the employee concerned, for which the employee concerned was not entitled. The aforesaid wrongful benefits were given to the petitioner w.e.f. 2006. The over payments in this respect were detected in December 2017. The long and short of the matter is, that the petitioner was a beneficiary of a mistake committed by the employer, and on account of the said unintentional mistake, the employee was in receipt of monetary benefits, beyond what was due.” 19. In view of the facts noticed above, it was held in Bhag Chand: “14. Learned Advocate General has placed reliance upon the decision of the Hon’ble Apex Court in High Court of Punjab and Haryana and others vs. Jagdev Singh, (2016) 14 SCC 267 , wherein the Officer concerned was seeking protection on account of the fact that he was due to retire within one year of the order of recovery. In the said case, the Officer to whom the payment had been 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 employee therein was a Judicial Officer and not a Class-III/Class-IV employee. The revised pay scale therein had been granted to the employee on 07.01.2002. Recovery thereof was initiated on 18.02.2004. In the aforesaid backdrop, the Apex Court held that the Officer who was to retire within one year of the order of recovery, in view of the undertaking given was not entitled to protection against the recovery made by the employer. Right to recover therein also existed irrespective of the undertaking, therefore, the aforesaid right of the employer was pitted with the extreme hardship caused to the employee. The scales tilted in favour of the employer. The aforesaid case is clearly distinguishable as in the case at hand employee belongs to Class-III category. The wrongful benefits were given to the petitioner in the case at hand w.e.f. 2006. The over payments in this respect were detected in December, 2017. Hardship is writ large in the case at hand. 15. The aforesaid case is clearly distinguishable as in the case at hand employee belongs to Class-III category. The wrongful benefits were given to the petitioner in the case at hand w.e.f. 2006. The over payments in this respect were detected in December, 2017. Hardship is writ large in the case at hand. 15. As rightly pointed out by the counsel for the petitioner the issue in question is no longer res-integra in view of the authoritative pronouncement of the apex Court in State of Punjab v. Rafiq Masih, (2015) 4 SCC 334 : (2015) 2 SCC (Civ) 608 : (2015) 2 SCC (L&S) 33, wherein Chandi Prasad Uniyal (supra) has also been considered.........” 16. In the case at hand the petitioner would fall in the exceptional categories: (i) and (iii) mentioned herein above.............” 20. This question also fell for consideration before the Calcutta High Court in Mrinal Kanti Ghosh v. State of West Bengal and others, WPA No. 5541 of 2023, decided on 05.07.2023. In the unreported judgment, it was held by Lapita Banerji, J: “In Jagdev Singh (supra), the retired employee was a judicial officer who was appointed as a Civil Judge, Junior Division on July 16, 1987 and promoted as an Additional Civil Judge on August 28, 1997. The only issue that was under consideration was whether a payment which has been made in excess can be recovered from an employee who has already retired from the service of the State. In such a case, the Hon'ble Apex Court held that an officer to whom the payment has been made would be clearly bound by his undertaking. An exception was carved out to condition nos. (ii) of Rafiq Masih (supra). However, the other conditions laid down in Rafiq Masih (supra) were not touched by the Hon'ble Apex Court. The employee in question in that case was a judicial officer who was neither a Group “C” employee nor a Group “D” employee. The question whether the excess payment has been made for more than 5 years was also not under consideration as in that case. The revised pay scale in the selection grade was allowed to the retired employee on and from January 7, 2002 and the employee/officer was placed under suspension from August 19, 2002 and was compulsorily retired from service (after one year of receiving the revised pay scale) on February 12, 2003. The revised pay scale in the selection grade was allowed to the retired employee on and from January 7, 2002 and the employee/officer was placed under suspension from August 19, 2002 and was compulsorily retired from service (after one year of receiving the revised pay scale) on February 12, 2003. This Court is of the view that the facts of Jagdev Singh (supra) are completely distinguish able from the facts of the present case. This is a case of a Group “C” employee who has received the benefits of pay fixation for more than 5 years and recovery, if made from the employee after his retirement would be extremely harsh and would far outweigh the equitable balance of the employer's right to recover. Therefore, this Court also finds that all the conditions of Rafiq Masih (supra) can be read disjunctively to determine whether an overdrawn amount can be recovered from an employee who neither mis represented nor committed any fraud for payment of such amount. Such was the view taken by this Court in WPA No. 21988 of 2019 (Sri Amit Kumar Ghosh vs. State of West Bengal). Reliance is placed on Sahib Ram vs. State of Haryana and Ors. 1995 Supp (1) SCC 18.” 21. The facts in this case would further show that the undertaking was taken from the petitioner on 09.01.2017, whereas the petitioner superannuated on 30.04.2022, a period of five years and a little more. All these years would have followed a rigorous annual audit, besides internal audits. It is very iniquitous on the respondents' part, with all the Establishment at their command, to permit a mistake about entitlement to ACP to go undetected for five years and then suddenly turn around upon the employee's retirement to invoke the undertaking and recover. The employee here is not only a man, who has superannuated, but is a Group 'D' employee. He represents the lowest echelons in the Establishment of the respondents. Group 'D' employees are relatively low paid employees and still have to shoulder the responsibility of their family, particularly, at the time they are retiring from service. This is a case, therefore, which falls in multiple categories of the exceptions envisaged in Rafiq Masih, where recovery of emoluments, paid in excess, may not be recovered. The case would fall under categories (i), (ii) and (iv). 22. This is a case, therefore, which falls in multiple categories of the exceptions envisaged in Rafiq Masih, where recovery of emoluments, paid in excess, may not be recovered. The case would fall under categories (i), (ii) and (iv). 22. In the considered opinion of this Court, therefore, the respondents are not entitled to recover anything from the petitioner or set-off the same against his post retiral benefits, the course of action that the respondents have chosen to adopt in this case. 23. In the result, this writ petition succeeds and is allowed. A mandamus is issued to the Director, Local Bodies, Uttar Pradesh, Lucknow, the Commissioner, Basti Division, Basti and the Executive Officer, Nagar Palika Parishad, Basti to pay the entire retiral dues of the petitioner, including dues on account of leave encashment, gratuity, arrears of pension and any other head of entitlement, without effecting any deduction on account of excess payment of emoluments for the wrongful grant of ACP claimed by the respondents. The entire payment of the petitioner's balance post retiral dues will be made good within a period of six weeks of the date of receipt of a copy of this judgment by the Executive Officer, Nagar Palika Parishad, Basti, failing which, for any further delay, the sum of money payable will carry simple interest at the rate of 6% per annum, until realization. 24. There shall be no order as to costs. 25. Let a copy of this order be communicated to the Director, Local Bodies, Uttar Pradesh, Lucknow, the Commissioner, Basti Division, Basti and the Executive Officer, Nagar Palika Parishad, Basti by the Registrar (Compliance).