Allahabad High Court
Rajendra Prasad Pandey vs State Of U.P. Thru. Secy. Agriculture ... on 27 September, 2018
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 17 Case :- SERVICE SINGLE No. - 16472 of 2018 Petitioner :- Rajendra Prasad Pandey Respondent :- State Of U.P. Thru. Secy. Agriculture And Others Counsel for Petitioner :- Deepak Singh Counsel for Respondent :- C.S.C. Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioner and learned Standing counsel appearing for the State-respondents.
2. By means of the present petition, the petitioner has prayed for the following reliefs:-
" (I) Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 02.01.2018 and 02.05.2018 passed opposite party no. 3 as contained in Annexure no. 2 and Annexure no. 4 to this writ petition, so far it relates to withheld/recovery of an amount of Rs. 1,28,118/- from the gratuity of the petitioner.
(ii) Issue a writ, order or direction in the nature of mandamus commanding and directing the opposite parties to forthwith release the amount of Rs. 1, 28,118/- which is illegally withheld/recovered from the gratuity of the petitioner along with interest at the rate of 18 % per annum from the due date till date of actual payment is made.
(iii) Pass any other suitable order or direction which this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case.
(iv) Allow the writ petition with costs".
3. The case set forth by the petitioner is that he was appointed in the year 1984 on the post of driver a Class III post in the Agricultural Department and in the year 1986 was transferred to Lucknow where he continued to work in the capacity of driver and he retired on attaining the age of superannuation on 31.12.2017. For the first time on 02.01.2018 vide a letter, a copy of which is annexure 2 to the writ petition, the respondent no. 3 informed the petitioner that the pay fixation of the petitioner for the period from 1999 has been found to be erroneous. The letter explicitly states that at the time when the petitioner was given the first promotional pay scale in the year 1998, the pay increment given to him w.e.f 01.01.1999 was not as per rules. The said anomaly or error has been discovered subsequently. It is contended that as annual increment of the year 1999 was erroneously granted w.e.f 01.01.1999 instead of 01.11.1999, consequently the benefit granted to the petitioner after 24 years of service after grant of the second promotional pay scale by giving the petitioner an additional increment w.e.f 27.11.2008 has also been found to have been granted erroneously and thus vide order dated 29.08.2017, the correct pay fixation has been done. On account of the said facts as noticed by the department, it has been discovered that an amount of Rs. 1,28,118/- has been given in excess to the petitioner which requires a recovery to be made and thus it has been directed that the aforesaid amount be recovered from the gratuity of the petitioner.
4. Being aggrieved with the said order, the petitioner preferred a representation dated 27.02.2018 to the respondent no. 3 for refunding back the aforesaid amount keeping in view the law laid down by the Hon'ble Supreme Court in the case of State of Punjab Vs. Rafiq Masih reported in 2015 (4) SCC 334. The said representation came to be rejected by the respondent no. 3 vide order dated 02.05.2018, a copy of which is annexure 4 to the writ petition contending apart from the above that as the petitioner has given his consent on 01.01.2018 for any wrong payment to be deducted, as such, there is no error in the respondents having proceeded to make the said deduction. It is also contended that as the aforesaid amount had wrongly been given to the petitioner, as such, the respondents are perfectly empowered to recover the said amount. Being aggrieved with both the orders dated 02.05.2018 and 02.01.2018, copies are which annexure 2 and 4 to the writ petition, the petitioner is before this Court.
5. Learned counsel for the petitioner while seeking to challenge both the orders has argued that the respondents are precluded from making any such re-fixation and order for consequential recovery once the pay fixation of the petitioner by grant of the first promotional pay scale was done way back in the year 1999. It is also contended that recovery from Class III and Class IV employees, the petitioner being a Class-III employee is no longer res integra keeping in view the law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (supra). So far as the undertaking given by the petitioner is concerned, it is contended that the said undertaking was given by the petitioner under duress on 01.01.2018, i.e after his retirement when the respondents were not ready to release the entire retiral dues of the petitioner and accordingly, any such undertaking given by the petitioner after a period of almost twenty years from the date of fixation done in the year 1999 would not be binding upon the petitioner. Thus, it is argued that both the impugned orders be quashed and a direction be issued to the respondent to refund the entire deducted amount of Rs. 1, 28,118/- to the petitioner along with interest.
6. On the other hand, learned Standing counsel on the basis of averments made in the counter affidavit has argued that at the time of fixation and determination of the actual pension of the petitioner at his retirement, it was found that an amount of Rs. 1,28,118/- had been paid in excess to the petitioner which required issue of the recovery order dated 02.01.2018. It is contended that it was on account of mistake in calculating the increments of the petitioner that he was paid the aforesaid amount in excess and thus the department while issuing the order of recovery has not done anything illegal or arbitrary rather has only rectified its mistake and consequently, there is no error in passing of the impugned orders. It is also argued that the petitioner has given an undertaking on 01.01.2018, a copy of which is annexure CA 1 to the counter affidavit authorizing the respondents to recover the amount of Rs. 1,28,118/- from his gratuity and as such, in view of the petitioner's undertaking, he is precluded from now challenging the aforesaid recovery. In this regard, learned Standing counsel has placed reliance upon the judgment of the Hon'ble Supreme Court in the case of High Court of Punjab and Haryana and Ors Vs. Jagdev Singh reported in (2016) 14 SCC 267 to contend that once the undertaking has been given by the petitioner authorizing the respondents to recover the excess amount, consequently the benefit of the judgment of Rafiq Masih (supra) shall not be available to the petitioner.
7. Heard learned counsel for the contesting parties and perused the record.
8. It is an admitted fact that the petitioner had been given the first promotional pay scale in the year 1998. It is also admitted that at the time of the retirement of the petitioner and fixing of his pension in this year 2017, it was discovered that the increment in pursuance to said promotional pay scale had been given wrongly to the petitioner w.e.f 01.01.1999 instead of 01.11.1999. This wrong increment which was give on 01.01.1999 continued so much so that when the petitioner was given the second promotional pay scale after completion of twenty four years of service on 27.11.2008, the said alleged anomaly was still continuing and which further resulted in the petitioner being given an additional increment w.e.f 27.11.2008 which was not admissible to him. According to the respondents the grant of the additional increment at the time of granting him first promotional pay scale and thereafter in the year 2008 has resulted in payment of an excess amount of Rs. 1,28,118/- which has been sought to be recovered by means of the impugned order dated 02.01.2018 from the gratuity of the petitioner. The representation preferred by the petitioner against the said order has also been rejected vide order dated 02.05.2018 by which the respondents have justified their action.
9. The question which arises before this Court would be as to whether the respondents would be entitled for recovering any amount under the garb of correcting the alleged error after a period of almost twenty year at the time of retirement of the petitioner more particularly when the petitioner is a Class-III employee and there is no allegation of any fraud or misrepresentation having been done by the petitioner at the time of his pay fixation in terms of the orders issued by the respondents in the year 1998-1999 while fixing his pay. The said issue is no longer res integra having been settled beyond doubt by the Hon'ble Supreme Court in the case of Rafiq Masih (supra). In the said judgment the Hon'ble Supreme Court after considering almost the entire law on the subject has categorically held that the recovery from employees belonging to Class-III and Class IV service would be impermissible in law. Likewise, recovery from the retired employees or the employees who are due to retire within one year of the order of recovery or where excess of payment has been made for a period in excess of five years before the order of recovery is issued would also be impermissible in the eyes of law. For the sake of convenience, the relevant observations of the Hon'ble Supreme are reproduced as under:-
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.
10. Thus, keeping in view the aforesaid proposition of law, it has to be held that the respondents are not empowered to make any recovery from the petitioner.
11. The next question that arises would be as to whether the undertaking given by the petitioner on 01.01.2018 apprising and authorizing the respondents to recover the amount of Rs. 1,28,118/- from his gratuity can be held against the petitioner as as to entitle the respondents to recover the alleged amount despite the settled proposition of law in the case of Rafiq Masih (supra). In this regard, reliance has been placed by the learned Standing counsel over the judgment of the Hon'ble Supreme Court in the case of Jagdev Singh (supra). In the said case, Jagdev Singh who was working as Civil Judge (Jr. Division), at the time of being given the senior scale of pay was required to submit an undertaking that excess amount which may be found to have been paid will be refunded to the Government. In pursuance thereof and while being paid the revised pay scale, Jagdev Singh undertook to refund any excess payment if it was so detected and demanded. Subsequently the revised pay scale was allowed to him. A few years later, a letter for recovery of an alleged excess amount was served upon Jadgev Singh. The said action for recovery was challenged before the High Court wherein the writ petition filed by Jagdev Singh was allowed. Upon challenge being raised to the judgement of the High Court by the Punjab and Chandigarh High Court before the Supreme Court, the Hon'ble Supreme Court after considering the judgment of Rafiq Masih (supra) held that the excess amount could be recovered where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. In these circumstances, the judgment of Rafiq Masih (supra) was distinguished. For the sake of convenience, the relevant observations of Jagdev Singh (supra) are reproduced as under:-
"2. The facts lie in a narrow compass. The Respondent was appointed as a Civil Judge (Junior Division) on 16 July 1987 and was promoted as Additional Civil Judge on 28 August 1997 in the judicial service of the State. By a notification dated 28 September 2001, a pay scale of Rs. 10000-325-15200 (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. 14300-400-18000-300. 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 January 2002.
4. The Respondent was placed under suspension on 19 August 2002 and eventually, was compulsorily retired from service on 12 February 2003.
5. In the meantime, this Court in Civil Writ (C) 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 May 2003.
6. In view thereof the pay scales of judicial officers in Haryana were once again revised with effect from 1 January 1996. An exercise was undertaken for adjustment of excess payments made to judicial officers, following the notification of the revised pay rules. On 18 February 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.
8. The order of the High Court has been challenged in these proceedings. From the record of the proceedings, it is evident that when the Respondent opted for the revised pay scale, he furnished an undertaking to the effect that he would be liable to refund any excess payment made to him. In the counter affidavit which has been filed by the Respondent in these proceedings, this position has been specifically admitted. Subsequently, when the Rules were revised and notified on 7 May 2003 it was found that a payment in excess had been made to the Respondent. On 18 February 2004, the excess payment was sought to be recovered in terms of the undertaking.
9. The submission of the Respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the state. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the Respondent was clearly on notice of the fact that a future re-fixation or revision may warrant an adjustment of the excess payment, if any, made.
10. In State of Punjab and Ors. etc. v. Rafiq Masih (White Washer) etc. this 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.
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".
12. Accordingly the judgment of Jagdev Singh (supra) would not be applicable in the facts of the instant case wherein no undertaking was given by the petitioner at the time of his pay fixation in the year 1998-99 and thereafter again in the year 2008 at the time of grant of second promotional pay scale. It is only after the retirement of the petitioner on 31.12.2017 and when his retiral dues were not being given, as has been indicated in paragraph 3 of the rejoinder affidavit, that the petitioner was compelled to give an undertaking under protest so as to get his retiral dues. Thus the said undertaking given by the petitioner would not empower the respondents to make any recovery from the petitioner. Accordingly, the law laid down by the Hon'ble Supreme Court in the case of Jagdev Singh (supra), would not be attracted in the facts of the instant case and the petitioner cannot be compelled to deposit the alleged excess amount and his case would be squarely covered by the principles of law in the case of Rafiq Masih (supra).
13. Keeping in view the aforesaid discussions and the law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (supra), the writ petition is allowed. The impugned orders dated 02.01.2018 and 02.05.2018 passed by the respondent no. 3, copies of which are annexed as annexure 2 and 4 are quashed. Respondents are directed to pay the deducted amount of Rs. 1,28,118/- to the petitioner with admissible interest within a period of three months from the date a certified copy of this order is produced before them.
Order Date :- 27.9.2018 Pachhere/-