Supreme Court
Case Details
Neutral Citation No. - 2023:AHC:203968 Court No. - 34 Case :- WRIT - A No. - 11667 of 2023 Petitioner :- Nathi Lal Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Amit Goel Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J. 1. Heard learned counsel for the parties and their arguments raised across the bar. 2. Petitioner, who is a Constable in Civil Police, has retired on 21.01.2023, whereas, he has been visited with the order of recovery on 09.05.2023, whereby, access payment made to the petitioner for wrongful pay fixation to the tune of Rs. 2,86,733/- have been made. 3. The order impugned dated 09.05.2023 has been assailed on the ground that the petitioner being Group - C employee, no such recovery should have been made from the from the arrears of post retirement dues of the petitioner in the light of judgment of Supreme Court in the case of State of Punjab & Others v. Rafiq Masih (White Washer) etc., 2014 Law Suit (SC) 1075 in which the Supreme Court very categorically held that in the case of Group - C and Group - D employees the recovery shall not be made from the access amount. Still further those who have retired as such, no recovery can be pursued. In the case of Rafiq Masih (supra) the Supreme Court has observed thus: "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." 4. This above view has been further followed reiterated in the case of Thomas Daniel v. State of Kerala & Ors, AIR 2022 SC 2153 in which the Court has relied upon a decision in the case of Col. B.J. Akkara (Retd.) v. Government of India (2006) 11 SCC 709, wherein, it was held that the recovery of the access amount is restrained in equity while the Court exercises judicial discretion to relieve the employee from hardship that will be caused if such a recovery is implemented and this view has been taken more particularly in respect of employees of lower rungs. The Court then relied upon the judgment in the case of Syed Abdul Qadir v. State of Bihar (2009) 3 SCC 475 in which vide para 59 it was held thus:
Legal Reasoning
"59. Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made." 5. It is argued on behalf of the petitioner that the order impugned has not only been passed without any notice or opportunity of hearing to the petitioner, inasmuch as, the order does not refer to any misrepresentation made by the petitioner for any such wrongful pay fixation, therefore, the petitioner being not responsible for access payment made to him for wrongful pay fixation, recovery cannot be issued against him. 6. Learned Standing Counsel though has sought to contest the matter on the ground that if wrongful pay fixation was done but he could not demonstrate from the counter affidavit that the petitioner ever furnished any affidavit or undertaking for any such wrongful pay fixation. 7. Thus, in my considered view, petitioner cannot be held guilty on the principle of suggestio falsi or suppressio vari. 8. The law is well settled that ignorance of law is no excuse. It has been held by the Supreme Court in the case of The Swadeshi Cotton Mills Co. Ltd. v. The Government of U.P. & Ors,(1975) 4 SCC 378 that "every individual is deemed to know the law of the land" and the judgment of Rafiq Masih (supra) was delivered on 18.12.2014 prior to the recovery of amount from the gratuity of the petitioner, and hence recovery is absolutely unsustainable as University Registrar cannot claim that he was not aware of the law. 9. Therefore, the petitioner is held entitled to not only the refund of the amount recovered but also interest upon the same. 10. The order dated 09.05.2023 in so far as the amount of Rs. 2,86,733/- as recovery from the post retirement dues stands quashed. The entire amount already deducted from the post retirement dues of the petitioner i.e. gratuity shall be refunded to him along with interest @ 8% till actual payment is made. Payment, as directed herein above, shall be made within a period of two months from the date of production of certified copy of this order. 11. In view of the above, petition succeeds and is allowed as above, however, with no order as to cost. Order Date :- 26.10.2023 IrfanUddin Digitally signed by :- IRFAN UDDIN SIDDIKI High Court of Judicature at Allahabad