Allahabad High Court
Kashi Prasad Shukla vs State Of U.P. And Others on 17 December, 2020
Equivalent citations: AIRONLINE 2020 ALL 2631
Author: Shekhar Kumar Yadav
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 75 Case :- WRIT - A No. - 13368 of 2009 Petitioner :- Kashi Prasad Shukla Respondent :- State of U.P. and Others Counsel for Petitioner :- Ajay Kr. Srivastava, Shiv Kumar Pal Counsel for Respondent :- C.S.C., A.S.G.I. (2009/473) Hon'ble Shekhar Kumar Yadav,J.
1. By means of this writ petition, the petitioner has, inter-alia, prayed for following reliefs:
"(i) issue a writ order or direction in the nature of certiorari quashing the recovery notice dated 26.8.2004 and 11.2.2009 (contained as Annexure Nos.1 and 3 to the writ petition) asking the petitioner to pay Rs.2,13,838/- as an excess payment of GPF to the petitioner;
(ii) issue a writ order or direction in the nature of mandamus commanding the respondents to not to initiate any coercive measure against the petitioner till the representation dated 11.09.2004 is decided and considered by speaking and reasoned order passed by the respondent no.4;
(iii) issue a writ order or direction in the nature of mandamus directing the respondent no.4 to release the 10% balance amount of GPF to the petitioner forthwith."
2. The brief facts of the case are that petitioner is a retired employee of the respondents and he retired on 30.04.2004 on the post of Sub-Inspector of Motor Transport while he was working under the control of Superintendent of Police, Fatehpur. Petitioner was provided GPF Account No.PU 72897. The GPF contribution of the petitioner has regularly been deducted by the respondents since 1964. After his retirement, the petitioner has been paid GPF amount to the tune of Rs.4,00,000/-. The said payment was made only up to 90% gratuity/GPF and 10% was to be paid after final settlement. Since the petitioner retired on 30.04.2004, and as such, the petitioner has moved a representation on 03.07.2004 to the respondent authorities to release his 10% of balance GPF amount. In pursuance of the said representation, the respondents vide order dated 26.08.2004 informed the petitioner that he has been paid excess amount of GPF to the tune of Rs.2,13,838/-. In pursuance of the said order dated 26.08.2004, the petitioner has submitted a detailed reply dated 11.09.2004 by registered post as well as by hand before the respondent no.4 requesting therein to calculate the GPF amount as per details mentioned in the said representation. The said representation has not been decided by the respondent no.4 and the same is still pending consideration. On 04.10.2004, the respondents have informed the petitioner that Rs.3606/- has been paid to him by Superintendent of Police, Pratapgarh. In reply to the said notice dated 04.10.2004, the petitioner has submitted a reply dated 03.11.2004 mentioning all the facts. After sleeping over the matte for almost 5 years, the respondent no.4 has illegally issued the impugned demand notice dated 11.02.2009 asking the petitioner to deposit Rs.2,13,838/- in pursuance of the order dated 26.08.2004, hence, this writ petition.
3. Learned counsel for the petitioner has submitted that petitioner has superannuated on 30.04.2004 on the post of Sub Inspector. After his retirement, firstly a demand notice dated 26.08.2004 has been issued and, thereafter, the impugned notice dated 11.02.2009 has been issued to the petitioner informing him to deposit Rs.2,13,838/- as excess amount. Grievance of the petitioner is that without considering petitioner's reply, an order has been passed directing recovery to be made from the petitioner. Learned counsel for the petitioner has further submitted that there is no allegation of misrepresentation or fraud practiced by the petitioner in the matter. For the excess payment on the default of the department, the same cannot be recovered from the petitioner, hence, the impugned demand notice is illegal, arbitrary, malafide and unreasonable on the part of the respondents and, therefore, the same is liable to be quashed. Submission is that after petitioner superannuated, no recovery could have been effected in view of the law laid down by Hon'ble Supreme Court in State of Punjab and others vs. Rafiq Masih (White Washer) 2015 4 SCC 334.
4. Learned Standing Counsel tried to support the impugned order by drawing attention to various Government orders, however could not dispute the current legal position as laid down by Hon'ble Apex Court in the case Rafiq Masih (supra). He could not point out that there was any misrepresentation or fraud on the part of the petitioner.
5. Heard learned counsel for the petitioner, learned Standing Counsel for the State and perused the material available on record.
6. In any event, the law is well settled by the latest judgment of the Apex Court in State of Punjab and others vs. Rafiq Masih (White Washer) 2015 4 SCC 334, making it clear that recovery from the retired employees or the employee who are due to retire within one year of the order of recovery, would be impermissible in law. In this context, it is relevant to extract paragraph 18 of the said judgment, which is given as under:-
"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 summarize 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.
(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. The Hon'ble Supreme Court of India had consistently taken a view that in respect of the retired employees as well as Group-3 and 4 employees, excess payment already paid cannot be recovered considering the financial constraint of these employees as well as the retired employees.
8. Admittedly, there does not appear to be any case of misrepresentation or fraud on part of the petitioner in the matter. This is an also admitted fact that the petitioner was allotted GPF Account No.PU 72897 and the GPF contribution of the petitioner has regularly been deducted by the respondents since 1964. After his retirement, the petitioner has been paid GPF amount to the tune of Rs.4,00,000/-. The said payment was made only up to 90% gratuity/GPF and 10% was to be paid after final settlement.
9. In paragraph 5 of the counter affidavit filed on behalf of respondent no.3, it is stated that petitioner's GPF account number is PU 72879 but in the district Fatehpur, there is no record available showing the GPF contribution from 1964 to 1978-79. It is further mentioned that from 1978-79, the entry with regard to GPF contribution has been made in GPF passbook of the petitioner.
10. It is categorically observed by the Hon'ble Apex Court in the judgment that recovery from the retired employees is impermissible. As such in the present case in hand where the petitioner is a retired employee of respondents, recovery of the amount so sought by the respondent cannot be allowed.
11. Under these circumstances, this Court is of the considered opinion that any order, affecting the service rights or conditions of an employee, cannot be issued without providing an opportunity to the employee concerned. This apart, the petitioner is a pensioner and retired from service on 30.04.2004. The petitioner is now aged about 76 years. Under these circumstances, any further recovery from the pension of the petitioner would affect his normal livelihood.
12. In the light of judgment of Hon'ble Apex Court in the case of Rafiq Masih (supra), if the case of the petitioner is considered, as mentioned above, since he retired from service, the respondents cannot proceed against the petitioner with the impugned order of recovery, therefore, the impugned recovery notice dated 26.08.2004 and 11.02.2009 (Annexure Nos.1 and 3 to the writ petition) issued by Officer of Accountant General Mahalekhakar (Lekha Evam Hakdari,) 1st U.P., Allahabad through Senior Accountant Nidhi-14, is not sustainable in the eye of law and the same is hereby quashed and remaining 10% balance amount of GPF be paid to the petitioner within a period of two months.
13. In view of vivid observations, this petition stands allowed.
14. However, on the facts and in the circumstances of the case, there will be no order as to costs.
Order Date :- 17.12.2020 Ajeet