Allahabad High Court
Bare Lal Upadhyay vs State Of U.P. & Others on 14 January, 2016
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 7 Case :- WRIT - A No. - 14196 of 2007 Petitioner :- Bare Lal Upadhyay Respondent :- State Of U.P. & Others Counsel for Petitioner :- Rajeshwar Tewari Counsel for Respondent :- C.S.C.,M.S. Pipersenia,Satish Chaturvedi Hon'ble Pradeep Kumar Singh Baghel,J.
The petitioner was a Class III employee. He stood retired from the post of Sub-Inspector (Ministerial) in the year 1995. Initially, he was appointed in the Consolidation Department in the year 1960. Later, in the year 1971 he joined in the Police Department where he reached at the age of his superannuation in the year 1995.
It is stated that after his retirement, an order has been passed by the Superintendent of Police, Siddharth Nagar on 02.02.2007 for recovery of a sum of Rs.71,621/- on the ground that there was a withdrawal from his G.P.F. account and excess payment has been made to him. It is further stated that after his retirement in the year 1995, for the first time, the petitioner was informed about the excess payment on 11.09.2006. The petitioner has made correspondence to the authority concerned explaining that the dues which are pending with the Parent Department i.e. Consolidation Department since 1960 has not been paid till date. In spite of several letters, the Parent Department has not paid the dues without any justification. One of the representations of the petitioner dated 20.10.2005 is on the record. It is also stated that on the basis of a query made by the Senior Accounts Officer, Office of the Accountant General, U.P. a correspondence dated 16.12.2005 was issued to the petitioner. The petitioner has replied the said correspondence. However, without considering his representation the impugned order has been passed.
A counter affidavit has been filed on behalf of the respondents no.3 and 4, wherein it is mentioned that a debit of Rs.5000/- taken by the petitioner from his G.P.F. account was not entered in the G.P.F. Pass-book by the Parent Office and due to said mistake the authorization of payment of the amount of Rs.7,917/- and Rs.59,052/- were not traceable at the time of calculation. The relevant part of the paragraph-4 of the counter affidavit is extracted hereunder below:
"It is pertinent to mention here that the debit of Rs.5000/- taken by the petitioner from his G.P.F. Account No.PU-98472 vide Voucher No.53 of April, 1981 from Ballia Treasury was not entered in his G.P.F. Pass Book by his Parent Office in the year 1981-82."
The same stand has been taken in the counter affidavit filed by the respondent no.2.
Learned counsel for the petitioner submits that the petitioner was a Class III employee and he stood retired in the year 1995. After 21 years, the impugned order has been passed for the recovery of a huge amount of more than Rs.71,000/-. He further urged that there is no allegation of fraud or misrepresentation on the part of the petitioner. Lastly, he relied on a judgment of the Supreme Court in the case of State of Punjab and others etc. v. Rafiq Masih (White Washer) etc. JT 2015 (1) SC 95.
Learned counsel for the respondents no.3 and 4 submits that the petitioner himself has moved an application that the amount disbursed to him is not a correct amount and he has made a request for higher payment. It is stated that on his request the excess amount has been paid to him. He has relied on Sub-Rule (6) of Rule 11 of the General Provident Fund (U.P.) Rules, 1985 which empowers the authorities concerned to recover overdrawn amount as arrears of land revenue and in case the employee is in the employment, the said overdrawn amount can be recovered in the installments. It was lastly urged that there was a usual undertaking of the employees that in case the excess amount is received the same can be recovered.
I have the learned counsel for the parties and perused the record.
Concededly, the petitioner is a retired employee and after 21 years of his retirement the impugned order has been passed for recovery of Rs.71,000/-.
From the pleadings of the respondents it is manifestly clear that there is no allegation of fraud or misrepresentation on the part of the petitioner. In their counter affidavit, the respondents no.3 and 4 have clearly stated that the amount drawn by the petitioner which has not been entered into the G.P.F. Register by the Parent Department, the said mistake has been occurred.
The Supreme Court in Rafiq Masih (supra) has considered the issue of excess payment made to an employee. The Court after considering its earlier judgements has laid down the law in following terms:
"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."
In the present case, if the petitioner moved an application after his retirement for fresh calculation of the dues, it was the duty of the Parent Department to examine his claim in terms of the Rules and Procedure.
From clause (ii) of the aforesaid paragraph it is evidently clear that the principles laid down in the said clause is applicable to the facts of the present case inasmuch as the petitioner is a Class III employee and he stood retired in the year 1995, therefore, no recovery can be made against the petitioner. Accordingly, the impugned order dated 02.02.2007 needs to be set aside. It is accordingly set aside.
The writ petition is allowed.
Order Date :- 14.1.2016 S.Sharma