Dismissed

Union of India and Another v. Mathura Prasad Sharma and Another

Allahabad HC9 Dec 2019WRIA/28940/2010

Case brief

AI extract

What is this about?

The Court dismissed a writ petition challenging the Tribunal's quashing of orders seeking pay recovery from a retired employee. Applying State of Punjab v. Rafiq Masih, the Court held that recovery was unjustified as it involved a retired employee and excess payment beyond five years.

What did the court decide?

Writ petition dismissed; Tribunal's order allowing the original application affirmed. Interim order vacated.

Union of India and Another Vs Mathura… — Pension and Retirement Benefits | Allahabad HC (2019)

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Court No. - 34

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Case :- WRIT - A No. - 28940 of 2010

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Petitioner :- Union of India and another Respondent :- Mathura Prasad Sharma And Another Counsel for Petitioner :- Devendra Tripathi Counsel for Respondent :- S.N.Yadav

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Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.

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Heard Sri Devendra Tripathi, Advocate, for petitioners. None appeared on behalf of respondent-1 though this petition has been taken in revise, hence we proceed to hear and decide it after hearing learned counsel for petitioners.

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This writ petition under Article 226 of Constitution has come up against judgment and order dated 15.12.2009 passed by Central Administrative Tribunal, Allahabad Bench, Allahabad (hereinafter referred to as “Tribunal”) allowing Original Application (hereinafter referred to as “OA”) No. 1372 of 2005 and setting aside the orders, impugned therein.

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Applicant-respondent-1, Mathura Prasad Sharma (hereinafter referred to as “respondent-1”) filed aforesaid OA stating that he was engaged as Trainee Fitter with effect from 23.07.1959 vide letter dated 26.11.1960 issued by District Signal and Telecommunication Engineer, Gorakhpur. He was absorbed in a permanent post with effect from 23.01.1961. While working at Pilibhit he was terminated by declaring him 'surplus'. This termination was challenged in a suit which was decreed in 1976 and appeal preferred by Railway Administration was dismissed by this Court. Consequently respondent-1 was reinstated with effect from his date of appointment. Further a seniority list was prepared in which respondent-1 was placed at Sl.No. 59 while persons junior to him were placed above him. This seniority list was challenged again in the Court of Munsif, Gorakhpur in Original Suit No. 811 of 1979.

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Similar Suits were filed by other persons also which were decreed and petitioners and Railway Administration were directed to correct respondent-1's place in seniority list placing him at Sl.No.-9. 5. Two Suits were thereafter filed challenging seniority of respondent-1 which were subsequently transferred to Tribunal and dismissed vide judgment and order dated 13.07.1988. 6. Respondent-1 then was promoted as Helper Supervisor Grade-II with effect from 18.01.1973 and as Helper Supervisor Grade-I with effect from 01.08.1969. His pay was revised from time to time and ultimately he retired on attaining the age of superannuation. 7. Petitioner-2 then passed an order for recovery alleging that pay granted to respondent-1 was not correct and, therefore, there has to be some recovery made. These orders were challenged before Tribunal and finding same to be unjustified, Tribunal has quashed the same.

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Learned counsel for petitioners could not dispute that with regard to fixation or grant of pay scale to respondent-1, neither there was any fraud nor representation on his part and it is also not disputed that after decades recovery was sought to be made. Such a recovery, in our view, is not permissible in the light of law laid down in State of Punjab and others Vs. Rafiq Masih 2015 (4) SCC 334 wherein Court postulated some of the situations where payments mistakenly made by an employer would not be recovered, as under:

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"(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service) .

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(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

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(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.

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(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid

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accordingly, even though he should have rightfully been required to work against an inferior post.

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(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."

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When questioned, learned counsel for petitioners could not dispute that issue raised in this writ petition is squarely covered by conditions (i), (ii) and (iii) of the aforesaid judgment and recovery is unjustified. Hence, we find no merit in this writ petition.

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It cannot be said that Tribunal has erred in law in allowing OA filed by respondent-1 so as to warrant interference in this writ petition. Dismissed. Interim order, if any, stands vacated. Order Date :- 09.12.2019 PS

Union of India and Another v. Mathura Prasad Sharma and Another

Case brief

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Union of India and Another v. Mathura Prasad Sharma and Another

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