Allahabad High Court
Daya Shankar Singh vs State Of U.P. And Others on 13 September, 2019
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 39 Case :- WRIT - A No. - 61326 of 2011 Petitioner :- Daya Shankar Singh Respondent :- State Of U.P. And Others Counsel for Petitioner :- Shyam Krishna Gupta Counsel for Respondent :- C.S.C. Hon'ble Neeraj Tiwari,J.
The petitioner was working on the post of Extension Educator in the department of Family Welfare since 6.9.1966. The post was subsequently redesignated as Health Education Officer. After rendering 36 years of service petitioner retired on 31.1.2004 on attaining the age of superannuation. The second respondent Additional Director, Treasury & Pension, Varanasi Region Varanasi while releasing the amount of pension and other retiral benefits with held on 30.4.2005 an amount of Rs. 50,000/- from the gratuity payable to the petitioner. The amount was withheld to recover the excess payment made to the petitioner on wrong fixation of salary in the revised pay-scale w.e.f. 1.1.1996. The Joint Director Pension had written letters on 10.3.2011 and 15.4.2011 to the second respondent, Additional Director, Treasury and Pension with regard to the deduction of Rs. 50,000/- but no suitable action was taken. Aggrieved, petitioner approached this Court by filing writ petition being writ petition no. 42496 of 2011 which was disposed of on 29.7.2011 directing the respondents to consider the representation of the petitioner. Pursuant thereof, the second respondent, Additional Director, Treasury and Pension, Varanasi by the impugned order dated 23.9.2011 declined to release the withheld gratuity of Rs. 50,000/- for the reason that there was irregularity in the fixation of pay to the petitioner w.e.f. 1.1.1996.
The petitioner has approached this Court challenging the order dated 23.9.2011 passed by the Additional Director, Treasury and Pension, Varanasi and order dated 8.9.2004 deducting Rs. 50,000/- from the gratuity.
Learned counsel for the petitioner also submitted that alongwith petitioner, one Pashupati Nath Ojha was also working and he had challenged the orders dated 30.4.2005 and 23.9.2011 by filing Writ-A No. 59047 of 2011, which was allowed by this Court vide order dated 10.3.2015. It is also submitted that the case of the petitioner is identical to the case of Pashupati Nath Ojha, therefore, petitioner is also entitled for the same relief.
I have heard learned counsel for the parties and perused the record.
It is contended by the learned counsel appearing for the petitioner that the petitioner has put in 36 years of service since 6.9.1966 and superannuated on 31.1.2004. The career record of the petitioner is unblemished and was never subjected to any disciplinary proceedings, further the petitioner had no role in the fixation of pay, and consequent payment of salary which was done by the competent authority as per the rules. The authorities after retirement have pointed out the irregularity in pay fixation vide letter dated 6.1.2005.
Learned counsel for the petitioner in support of his submission has relied upon a decision rendered in Paras Nath Srivastava vs. State of U.P. and others (Writ A No. 10893 of 2008) decided on 23.9.2010. Admittedly, there is no charge of fraud and misrepresentation, it is a case of wrong fixation by the respondents. It would cause great hardship to the petitioner, in case, an amount of Rs. 50,000/- is permitted to be recovered from the post retiral benefits. It is also admitted that no opportunity was given to the petitioner before passing the impugned order for making deductions from the gratuity. The learned counsel for the petitioner has confined his argument only to the recovery sought to be made from the petitioner after retirement from the gratuity and has not questioned the pay fixation.
The aforesaid issue is no longer res-integra. This Court in a series of decisions has clarified where there is no fraud or misrepresentation and there is a charge of wrong fixation of emoluments which have been paid in excess, cannot be recovered after the retirement of the employees. Reference may be had to the decision reported in 2005 ALJ 1141 (Duryodhan Lal Jatav vs. State of U.P. and others). Recovery from gratuity has been held to be impermissible in the judgment of this Court in the case of Radhey Shyam Dixit vs. State of U.P. and others, 2006 (5) ADJ 720 which decision in turn relies on the Supreme Court decision in the case of D.V. Kapoor vs. Union of India, reported in 1990 (4) SCC Pg. 314 and the decision subsequently reported in 1990 (Supplement) SCC Pg. 640 (F.R. Jesuratnam vs. Union of India and others.
A Division Bench of this Court in State of U.P. Thru. Secretary Irrigation and three others vs. Ram Adhar Singh and another (Special Appeal Defective No. 115 of 2015) decided on 11.2.2015 relying upon Supreme Court judgment rendered in State of Punjab vs. Rafiq Masih (2014) 8 SCC 883 held that the Supreme Court, while holding that it would not be possible to make an exhaustive enumeration governing all those cases of recoveries where payments have been made mistakenly by an employer in excess of the entitlement, referred to a few situation where recoveries by the employer would be impermissible in law. The observations of the Supreme Court are thus:
"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."
The case of the petitioner, who being a retired employee, is governed by the principles of law which have been enumerated in Rafiq Masih (supra). Therefore, even in a case where the payment has been made mistakenly to the petitioner, no case for recovery would be made out.
For the reasons stated herein above, the orders dated 8.9.2005 and 23.9.2011 passed by second respondent, Additional Director, Treasury & Pension, Varanasi directing recovery of Rs. 50,000/- from the gratuity amount is quashed. The writ petition is allowed.
The second respondent, Additional Director, Treasury & Pension, Varanasi is directed to release the gratuity amount of Rs. 50,000 to the petitioner within three months from the date of filing of certified copy of this order, failing which, the petitioner shall be entitled to the interest @ of 8.5% per annum from the date it was due.
Order Date :- 13.9.2019 Rmk.