Allahabad High Court
Jagat Narayan Yadav vs State Of U.P. And 4 Ors. on 14 November, 2019
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 2 Case :- WRIT - A No. - 1914 of 2017 Petitioner :- Jagat Narayan Yadav Respondent :- State Of U.P. And 4 Ors. Counsel for Petitioner :- Vinay Kumar Srivastava,Abhishek Srivastava Counsel for Respondent :- C.S.C. Hon'ble Suneet Kumar,J.
Heard the learned counsel for the parties.
Petitioner retired from the post of Technical Officer (Providhik Adhikari) on attaining the age of superannuation on 31 August 2015.
By the instant writ petition, petitioner seeks quashing of the orders dated 4 April 2016, 2 June 2016 and 23 June 2016, passed by the respondents, whereby, recovery has been directed to be made from the petitioner for the excess payment of salary due to wrong pay fixation. Further, direction has been sought to refund the recovered amount at Rs.3,31,194/-.
In the counter affidavit filed by the first, second and fourth respondents, service record of the petitioner before retirement was sent to the office of the Finance Controller, Lucknow, upon verification, the record was returned to the office of the petitioner for correcting of the wrong fixation of pay. Petitioner on 10 August 2015, endorsed that he agrees with the fixation of pay upon due verification and has no objection if the excess amount paid to the petitioner is recovered. Thereafter, the records were transmitted on 10 August 2015, to the Finance Controller. It is, further, stated in the counter affidavit that the amount to be recovered was duly informed to the petitioner on 30 April 2016, to which, petitioner agreed vide letter dated 4 May 2016, which was duly counter signed by the Head of the Department, Jaunpur, thereafter, the amount sum at Rs.3,31,194/- was recovered and deposited in the State Exchequer on 23 June 2016.
Learned counsel for the State-respondent has produced the letter submitted by the petitioner consenting for deduction of the amount to be recovered from the petitioner due to wrong pay fixation.
The learned counsel for the petitioner has placed reliance on the law laid down by the Supreme Court in State of Punjab and others v. Rafiq Masih (White Washer)1, followed in High Court of Punjab & Haryana v. Jagdev singh2, to submit that the recovery from the petitioner after retirement is unsustainable.
The relevant portion of judgment passed in the case of Jagdev Singh (supra) is quoted below:-
"In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer)3 the Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer 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.? (emphasis supplied).
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.
For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable installments. We direct that the recovery be made in equated monthly installments spread over a period of two years.
The judgment of the High Court is accordingly set aside. The Civil Appeal shall stand allowed in the above terms. There shall be no order as to costs."
In this backdrop, it is urged by learned counsel for the State-respondent that in view thereof, since petitioner had given his consent; recovery was made during the service period of the petitioner and not after his retirement, hence, relief claimed by the petitioner cannot be allowed.
The pleadings and the material placed on record reflects that the pension papers of the petitioner was processed prior to his retirement as per the government order. On discovery of wrong fixation of pay, the matter was sent back by the Finance Controller, for correction. It appears that petitioner was confronted with the wrong fixation, to which, he agreed and consented in writing on 10 August 2015, for recovery of the excess amount. Petitioner was, accordingly, informed of the sum sought to be recovered. All this exercise was undertaken by the respondents prior to the retirement of the petitioner. In the circumstances, the respondents were justified in recovering the excess amount.
Having due regard to the facts and circumstances of the case, the Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India declines to interfere with the impugned orders.
The writ petition is, accordingly, dismissed.
No cost.
Order Date :- 14.11.2019 Mukesh Kr.