High Court
Case Details
Neutral Citation No. - 2023:AHC:213604 Court No. - 34 Case :- WRIT - A No. - 14215 of 2023 Petitioner :- Onkar Singh Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Ashutosh Kumar Saroj,Atul Kumar,Kuldeep Singh Chahar Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J.
Facts
1. Heard learned counsel for the parties and perused the record. 2. By means of this petition filed under Article 226 of the Constitution, petitioner has prayed for quashing of the order dated 15th December, 2021, whereby recovery of Rs.2,18,059/- has been directed for excess payment made to the petitioner towards the salary. 3. Learned counsel for the petitioner submits that neither any opportunity of hearing was ever afforded to the petitioner nor, any show cause notice was issued to him prior to passing of the order. He submits that after petitioner was retired from the post of Sub- Inspector on 30th September, 2021 and his papers regarding post retirement dues were being finalized that impugned recovery has been made from the post retirement dues. He submits that this has been as a sequel to the order dated 16th March, 2021 passed by the Additional Superintendent of Police, Hapur, according to which due to wrongful pay fixation petitioner has been paid excess salary. 4. It is submitted by learned counsel for the petitioner that petitioner is not aggrieved by any revised pay fixation under the order passed on 16th March, 2021 and, therefore, is confining his prayer to the extent recovery has been directed and made. He submits that neither the recitals in the order dated 16th March, 2021 nor, the order dated 18th December, 2021 record that at any point of time petitioner was afforded any opportunity of hearing, or any affidavit had been ever taken from the petitioner at the time of pay fixation. He, therefore, submits that he being a Group 'C' employee and a retired person, is entitled to the benefit of the judgment of the judgment of Supreme Court in the case State of Punjab and others v. Rafiq Masih (White Washer) and others (2015) 4 SCC 334. 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." 5. 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
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." 6. 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. 7. Learned Standing Counsel though sought to justify the recovery for the reason that wrongful fixation was done previously but could not demonstrate either from the orders or from the counter affidavit that at any point of time any affidavit was required to be furnished by the petitioner when pay fixation was being done. All that has been stated in paragraph 17 of the counter affidavit that petitioner was not entitled to payment of wrongful pay fixation and, therefore, recovery was justified, however, learned Standing Counsel could not dispute the law laid down by the Supreme Court in the aforesaid judgment. 8. Thus, in my considered view, petitioner cannot be held guilty on the principle of suggestio falsi or suppressio vari. 9. 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. 10. Therefore, the petitioner is held entitled to not only the refund of the amount recovered but also interest upon the same. 11. The order dated 15th December, 2021 in so far as the amount of Rs.2,18,059/- 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. 12. In view of the above, petition succeeds and is allowed as above, however, with no order as to cost. Order Date :- 7.11.2023 Atmesh Digitally signed by :- ATMESH KESARI High Court of Judicature at Allahabad
Arguments
"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