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2024 DIGILAW 239 (ALL)

Rishi Pal Singh v. State of U. P.

2024-01-23

J.J.MUNIR

body2024
JUDGMENT J.J. Munir, J. Parties have exchanged affidavits. 2. Admit. 3. Heard forthwith. 4. Heard Mr. Brijesh Kumar Singh, learned Counsel for the petitioner and Mr. Sandeep Chandra, learned Standing Counsel appearing on behalf of the State. 5. This writ petition is directed against the orders dated 16.08.2023, 19.09.2023 and 20.10.2023 passed by respondent nos.4 & 5, determining the petitioner's salary, said to be mistakenly fixed and on that basis, ordering recovery of a sum of Rs. 6,53,470/-. The said sum of money has been deducted from the sum of money due to the petitioner on account of his commuted pension. The petitioner was a Leading Fireman (Class III) in the U.P. Fire Department. He was last posted in the Fire Department, District Hapur under the control of the Superintendent of Police, Hapur. The petitioner retired from services on 31.05.2023. He rendered a total of about 41 years of service and earned his third Assured Career Progression (A.C.P.). The petitioner's salary was fixed after the award of the third A.C.P. at a sum of Rs. 16,670/- per month, whereas according to the respondents, it should have been Rs. 16,180/- per month. This wrong fixation of the third A.C.P. Made, the respondents say that the petitioner has been paid excess emoluments, which they are now entitled to recover from the sum of money due to the petitioner on account of commuted pension. 6. Learned counsel for the petitioner submits that the petitioner is a retired Class III employee and he is in no way connected with the process of fixation of his salary, now said to be wrongly determined by the respondents. It is pointed out that it is not the respondent's case that the petitioner has contributed in any manner to the incorrect fixation of his salary. The respondents are, therefore, not entitled to recover. The argument is based on the authority of the Supreme Court in State of Punjab & Others v. Rafiq Masih (White Washer), (2015) 4 SCC 334 . The petitioner is entitled to relief against recovery of the sum of money which has been paid irrespective of the fact that the determination was correct or erroneous. The attention of this Court has been drawn towards the following observation of the Supreme Court in Rafiq Masih (supra):- "18. The petitioner is entitled to relief against recovery of the sum of money which has been paid irrespective of the fact that the determination was correct or erroneous. The attention of this Court has been drawn towards the following observation of the Supreme Court in Rafiq Masih (supra):- "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 a 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." 7. On the other hand, learned Standing Counsel submits that the petitioner's emoluments have been incorrectly determined and excess payment has been made at the time of fixation of third A.C.P. Learned Standing Counsel has endeavoured to say that the petitioner had consented to the recovery of emoluments paid in excess with entitlement of the respondents to recover. To buttress his contention, the Court's attention has been drawn by the learned Standing Counsel towards Annexure CA-2 to the counter affidavit. Annexure CA-2 is an application for the provision of pension, gratuity and pension commutation. There is a declaration appended with the application form signed by the petitioner and counter-signed by the Superintendent of Police, Hapur, which reads: 8. To buttress his contention, the Court's attention has been drawn by the learned Standing Counsel towards Annexure CA-2 to the counter affidavit. Annexure CA-2 is an application for the provision of pension, gratuity and pension commutation. There is a declaration appended with the application form signed by the petitioner and counter-signed by the Superintendent of Police, Hapur, which reads: 8. Learned Standing Counsel urges that in all cases where an employee consents to the recovery of any excess payment made, there cannot be a plea in equity to forbear or undo the recovery. In support of his contention, reliance is placed on the decision of the Supreme Court in case of High Court of Punjab and Haryana & Others v. Jagdev Singh, (2016) 14 SCC 267 , where it has been observed qualifying the principles in Rafiq Masih: "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." 9. On a careful perusal of the record and the principles in Rafiq Masih and the exception carved out in Jagdev Singh (supra), what would be noticed is that the consent to refund any excess payment of emoluments contemplated in Jagdev Singh is one that is furnished at the time when the excess payment is made. Here, that point could be the time when the third A.C.P. was awarded to the petitioner; not the time when the petitioner filled his form for the award of pension, gratuity and the commutation of pension. The declaration, on which the learned Standing Counsel has relied, does not enure to the respondent's benefit, relying on the exception in Jagdev Singh. The principles in Rafiq Masih has been followed by this Court in Raghunath Bharti v. State of U.P. and Others, Neutral Citation:2019:AHC:83880, where it has been held : "25. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives in order to upkeep of his family. The principles in Rafiq Masih has been followed by this Court in Raghunath Bharti v. State of U.P. and Others, Neutral Citation:2019:AHC:83880, where it has been held : "25. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives in order to 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, if the relief is not granted in the matter. The situation will be otherwise where the employee was aware 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. In that situation it is settled law that the Courts will not grant relief against recovery. 26. In my opinion such kind of reliefs are granted by Courts not because of any right of the employees but in equity, in exercise of judicial discretion to relieve the employee from the hardship that will be caused if recovery is implemented. 27. The respondents has illegally recovered/not paid the retiral benefits to the petitioner, as such petitioner is entitled for payment of interest. It was argued by the learned counsel for the respondents that no such prayer has been made in the writ petition and as such the aforesaid relief could not be granted to the petitioner. This relief could be granted by the Court specially in its power under Article 226 of the Constitution of India. 28. In view of above settled principle of law, this Court is of the view that since the wholly illegally amount has been recovered from the pensionary benefits/post retiral dues of the petitioner without any rhyme or reason, in view of the settled law this Court think it proper to grant the relief for the payment of interest to the petitioner also." 10. Here, this Court finds that the respondents' case does not at all fall within the exceptions to the principles in Rafiq Masih and the excess payment, that has been made to the petitioner on account of the respondents' own mistake in determining his emoluments while awarding him the third A.C.P. does not entitle them to recover. Here, this Court finds that the respondents' case does not at all fall within the exceptions to the principles in Rafiq Masih and the excess payment, that has been made to the petitioner on account of the respondents' own mistake in determining his emoluments while awarding him the third A.C.P. does not entitle them to recover. There is no undertaking furnished by the petitioner at the time when the third A.C.P., was awarded that he would refund any excess payment made on account of wrong fixation. The undertaking, as already distinguished, is not in regard to the wrong fixation of salary while awarding the third A.C.P. 11. In the given circumstances, the present petition succeeds and is allowed. The impugned orders dated 16.08.2023, 19.09.2023 and 20.10.2023 passed by the Superintendent of Police, Hapur, the Finance Controller, U.P. Police Headquarters, Lucknow and again the Superintendent of Police, Hapur, respectively are hereby quashed. Let a mandamus issue to the Superintendent of Police, Hapur and the Finance Controller, U.P. Police Headquarters, Lucknow to ensure, amongst themselves, immediate payment of the sum of Rs. 6,53,470/- to the petitioner, deducted from his commuted pension. 12. There shall be no order as to costs.