Allahabad High Court
Harish Bharti vs State Of U.P. And 3 Others on 20 January, 2023
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- WRIT - A No. - 21039 of 2022 Petitioner :- Harish Bharti Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Devendra Tiwari Deva Counsel for Respondent :- C.S.C.,Shyam Mani Shukla Hon'ble Neeraj Tiwari,J.
Rejoinder affidavit filed today be taken on record.
Heard learned counsel for petitioner, learned standing counsel for State-respondents and S.M. Shukla, learned counsel for the respondent nos. 2 to 4.
Case was heard on 16.12.2022 and Court has passed the following order:-
"Heard learned counsel for the petitioner, learned Standing Counsel for respondent no.1 and Sri S.M. Shukla, learned counsel for the respondents no.2, 3 & 4.
The petitioner has retired on 31.07.221 as Draftman from the office of respondent no.2. When the petitioner's pension was not released, he approached this Court by means of Writ-A No.17806 of 2021, which was disposed of vide order dated 17.12.2021.
The respondent no.2 did not comply with the order dated 17.12.2021 which led the petitioner to file Contempt Application (Civil) No.4679 of 222. The respondent no.2 thereafter issued a notice dated 15.09.2022 to the petitioner directing him to deposit Rs.13,03,122.70/- with Nagar Nigam on the ground that the petitioner was given wrong promotion to the post of Draftman. The petitioner submitted reply to the said notice on 19.09.2022 denying the fact that he was wrongly given promotion. He further stated that after retirement, no recovery can be effected.
The respondent no.2 now has passed an order dated 25.09.2022 by which he has adjusted an amount of Rs.11,63,015/- from leave encashment and gratuity of the petitioner in respect of amount of Rs.13,03,122.70/- and has further directed that after adjustment, balance amount of Rs.1,40,107.70/-, pension of petitioner shall be released.
Learned counsel for the petitioner submits that no recovery against the petitioner can be effected after retirement in view of the judgement of the Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others 2015 SCC (4) SCC 334.
In such view of the fact, matter requires consideration.
Learned counsel for the respondents is granted three weeks time to seek instructions in the matter as to how the recovery can be effected against the petitioner.
Put up as fresh on 16.01.2023.
In case the instructions are not supplied by the next date fixed, the respondent no.2-Nagar Ayukta, Nagar Nigam, Bareilly, shall remain present before this Court on the date fixed."
Pursuant to the order dated 16.02.2022, learned counsel for both the parties has filed counter and rejoinder affidavits. In the counter affidavit, there is no denial of fact that petitioner got wrong promotion to the post of Draftman for which he is not responsible. Further, he has never concealed any fact or played fraud. It is also undisputed that petitioner is Class-III employee and retired from service on 31.7.2021 and in light of judgement of Apex Court in the matter of State of Punjab and others Vs. Rafiq Masih: 2015 (4) SCC 334, in case of incorrect fixation of pay scale, any payment is made, no recovery can be made after retirement from Class-III and Class-IV employee.
Learned counsel for the respondents could not dispute the factual and legal submissions raised by the learned counsel for the petition.
I have considered the rival submissions advanced by the learned counsel for the parties and perused the records as well as impugned order. Facts of the case are undisputed. Apex Court in the case of Rafiq Masih (supra) while dealing with such dispute, had framed following guidelines:-
"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."
Undisputedly, case of petitioner is squarely covered with the judgment of Rafiq Masih (supra) and petitioner was not responsible for fixation of incorrect pay scale and consequently for excess payment.
Therefore, under such facts and circumstances of the case, the impugned order dated 25.11.2022 is hereby quashed and writ petition is allowed. No order as to costs.
Respondent no.2 is directed to pay all post retiral dues to the petitioner along with 6% interest from due date to the date of actual payment within eight weeks from the date of production of certified copy of this order.
Order Date :- 20.1.2023 Junaid