Allahabad High Court
Umesh Rai And 5 Ors. vs State Of U.P. And 2 Ors. on 6 November, 2019
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 90 Case :- WRIT - A No. - 6348 of 2015 Petitioner :- Umesh Rai And 5 Ors. Respondent :- State Of U.P. And 2 Ors. Counsel for Petitioner :- Ashok Kumar,A.P. Mathur,Arvind Kumar,Qaisar Kamal Ansari,R.C. Pathak Counsel for Respondent :- C.S.C. Hon'ble Piyush Agrawal,J.
Present writ petition has been instituted by six petitioners amongst other the following reliefs:
"1. issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 22.11.2014 passed by the respondent no.3 (Annexure no.7 to the writ petition).
2. issue a writ order or direction in the nature of mandamus directing the respondent concerned not to proceed further in recovery proceeding pursuant to the impugned order dated 22.11.2014 passed by the respondent no.3 and stop deduction from the salaries of the petitioners, during the pendency of the present writ petition, so that justice may be done."
The petitioners were appointed as Class IV employees in the Forest Department and were posted at Ballia on the of post of Mali. The initial appointments of the petitioners were made on 12.1.1982, 18.7.1982, 10.4.1981, 18.7.1982, 12.9.1985 and 18.4.1992. The petitioners were performing their duties on the said post. On 22.11.2014 has order was passed by which the pay scale of the petitioners in the first promotion was reduced to Rs. 2610-60-3150-65-3540 in place of Rs. 2750-70-3800-76-4400 and in the second promotion their pay scale was reduced to Rs. 3050-75-3900-80-4590 in place of Rs. 4000-100-6000, 5200-20200 Grade Pay 2400/-. It is stated that on the basis of the audit objection fresh fixations have been made and proceedings were initiated to realise the excess payment from the salary of the petitioners. Pursuant thereto the Department started recovery from the salary of the petitioners from October, 2014.
Feeling aggrieved by the impugned order dated 22.11.2014 the petitioners have preferred the present writ petition.
On the contrary the stand taken by the respondents From a perusal of the impugned recovery it appears that on the basis of the audit objection the respondents came to know that by inadvertent mistake wrong fixation of pay scale has been made in the case of the petitioners and the salary which has been drawn by the petitioners were not admissible to them, therefore, the excess amount paid to them has been rightly sought to be recovered.
Heard the learned counsel for the petitioners and the learned standing counsel for the respondents.
Learned counsel for the petitioners has stated that petitioners, who are six in number, were duly appointed as Class IV employees in the Forest Department and were discharging their duties with full devotion and honesty on the post of Mali. He further stated that from time to time pay scales were revised and accordingly for which the petitioners were entitled to it, the salary was paid to them but by the impugned order recovery is being made which is not permissible under the law. Learned counsel for the petitioner has relied upon a judgment of Supreme Court in the case of State of Punjab vs. Rafiq Masih reported in Laws (SC) 2014-12-59.
Learned standing counsel has filed counter affidavit and has tried to justify that the excess amount has been paid to the petitioners due to wrong fixation of pay scale by inadvertent mistake, therefore has rightly been sought to be recovered from them. He has relied upon a judgment of the Supreme Court in the case of High Court of Punjab and Haryana and others vs. Jagdev Singh reported in 2016 Lawsuit (SC) 748.
The Court has perused the record.
It reveals that the petitioners were Class IV employees in the Forest Department. Their pay scales were revised from time time and accordingly they have been paid their salary. The petitioners were aggrieved by the order dated 22.11.2014 passed by the Regional Director, Social Forestry Department, Ballia, respondent no.3 whereby recovery of excess payment made to the petitioner due to wrong fixation of their pay scale, were sought to be recovered. From a perusal of the impugned order of recovery it appears that the on the basis of the audit objection fresh fixation of pay scale has been made, therefore the order of recovery has been passed for recovering excess amount paid to them.
The Apex Court in the case of Refiq Masih (supra) has held as under:
"11. 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 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 for 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."
The Supreme Court has specifically held that no recovery shall be made from the employees belonging to Class III and Class IV service after their retirement.
A pointed question was made from the learned standing counsel as to whether the petitioners are still in service, the answer was in negative. More precisely all the petitioners have now been retired. Learned counsel for the petitioners has also made a statement at Bar that all the petitioners are now retired.
In the judgment of the Apex Court in Jagdev Singh (supra) relied upon by the learned standing counsel the Supreme Court has held that recovery of excess payment can be made when the employee has furnished an undertaking to the said effect.
Learned standing counsel has filed a supplementary counter affidavit. Paragraph 5 of the affidavit reads as under:
"5. That after examination of the file of the petitioners the deponent states that no such undertaking has been obtained by the respondent no.3 from the petitioners at the time of giving the benefit of the Assured Career Promotion and approval of recovery has been done on the basis of the internal audit conducted from 17.10.2011 to 19.11.2011 as the said benefit was beyond the parameters of the Government Orders."
From the perusal of paragraph 5 of the supplementary counter affidavit it is clear that no such undertaking has been obtained from the petitioners by the respondent no.3. The judgment relied upon by the learned standing counsel in the case of Jagdev Singh (supra) is of no help as no undertaking has been given by the petitioner for recovery of excess amount paid to them. Therefore, the said judgment is not applicable in the facts of the case in hand and the judgment is distinguishable.
The respondents by means of supplementary counter affidavit has specifically stated in paragraph 5 quoted above that the petitioners have not given any undertaking for recovery of excess payment whereas the judgment in Refiq Masih (supra) cited by the learned counsel for the petitioner is squarely covered the issue in hand as the petitioners have retired from service belonging to Class III and Class IV service.
Keeping in mind the principle of law laid down by the Apex Court in Refiq Masih (supra) since no undertaking has been given by the petitioners, this Court is of the opinion that no recovery from the retired employees belong to Class III and Class IV posts can be made.
Accordingly the impugned order dated 22.11.2014 is quashed. The writ petition is allowed. No order as to costs.
Order Date :- 6.11.2019 samz