Allowed

Smt. Asha Devi v. Additional Director Tresury and Pension and 3 Others

Allahabad HC14 Dec 2020WRIA/3872/2019

Case brief

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What is this about?

The Court quashed orders withdrawing excess pay benefits from the petitioner's deceased husband, holding that Class IV employees cannot be made to refund excess payment where no fraud or misrepresentation exists. The Court directed refund of withheld gratuity.

What did the court decide?

Quashing of the impugned orders and directed refund of withheld gratuity amount within a fortnight, with 6% interest per annum if not refunded.

Smt. Asha Devi Vs Additional Director… — Pension and Retirement Benefits | Allahabad HC (2020)

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Court No. - 75

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Case :- WRIT - A No. - 3872 of 2019 Petitioner :- Smt. Asha Devi Respondent :- Additional Director Tresury And Pension And 3 Others Counsel for Petitioner :- Indra Raj Singh,Adarsh Singh,Deo Prakash Singh Counsel for Respondent :- C.S.C.

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Hon'ble Shekhar Kumar Yadav,J.

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Heard I.R. Singh, learned counsel for the petitioner, learned Standing Counsel for the State and perused the material on record.

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By means of this writ petition, petitioner has sought the following reliefs:-

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"(i) Issue a writ, order or direction in the nature of Certiorari quashing the impugned orders dated 23.09.2017 and 22.01.2019 passed by respondent no. 1 Additional Director Treasury and Pension,Varanasi Division, Varanasi and impugned order dated 13.07.2018 passed by respondent no. 3 Executive Engineer, Minor Irrigation Division, Jaunpur.

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(ii) Issue a writ, order or direction in the nature of mandamus directing the respondent no. 1 to pay entire outstanding amount of terminal benefits including withheld amount of Family Pension, Gratuity and Insurance along with interest at the rate of 12% per annum within stipulated period as may be fixed by this Court."

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Brief facts of the case are that husband of petitioner late Ramesh Kumar Singh was holding substantive post of Assitatn Surveyor in Irrigation Department since 7.7.1985 and he died in harness on 24.3.2016. The petitioner applied for terminal service benefits as amount of GPF, Leave Encashment Insurance, Gratuity and Family Pension but the respondents all of sudden without affording any opportunity of hearing passed an impugned order dated 23.09.2017 mentioning therein that the husband of the petitioner has been wrongly granted the benefit of pay fixation of the first promotional pay scale and thereafter vide impugned order dated 13.07.2018 refixed the salary of the husband of the petitioner w.e.f. 31.08.2010 and thereafter respondent no. 1 is said to have passed an order dated 22.01.2019 whereby gratuity

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amount of Rs. 11,95,600 was sanctioned and an amount of Rs. 9.94,732 was withheld on account of alleged wrong fixation.

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The claim of the petitioner is that salary of husband of the petitioner has been voluntarily fixed by the respondent authorities and the husband of the petitioner had no role in such fixation and after the death of the husband of the petitioner no recovery of excess amount of salary paid to the husband of the petitioner from his gratuity amount is permissible. It is also contended that no misrepresentation or fraud is there on the part of the husband of the petitioner.He placed reliance on the case of Hansraj Singh and Others Vs State of UP and others, 2015 Law Suit (All) 225 and State of Punjab and others Vs.Rafiq Masih,2015 (4) SCC 334.

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On the other hand, learned Standing Counsel opposed the prayer and submitted that there is no ground to challenge the recovery which has been rightly directed to be made in view of excessive payment due to wrong fixation.

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A counter affidavit has been filed by the State respondents, wherein in paragraph no. 4 it has been stated that pay scale of the husband of the petitioner was wrongly fixed by the department and this fact was verified by the Additional Director, Treasury and Pension, Varanasi Division, Varanasi vide letter dated 23.09.2017 after the death of the petitioner's husband, when the matter was in the process for pensionary benefits. It is further submitted that after re-examination of the matter, the pay scale has been corrected by the competent authority vide order dated 13.07.2018 and accordingly pension papers were prepared on 22.01.2019 and the same has been forwarded to the Treasury Officer, Jaunpur after deducting the amount of Rs. 9,94,732.

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Admittedly, husband of petitioner late Ramesh Kumar Singh was holding substantive post of Assitatn Surveyor in Irrigation Department since 7.7.1985 and he died in harness on 24.3.2016 and thereafter, the petitioner applied for terminal service benefits and the respondents without affording any opportunity of hearing, come up with a case that the husband of the petitioner has been wrongly granted the benefit of pay fixation of the first promotional pay scale and after re-fixation of the salary of the husband of the petitioner w.e.f. 31.08.2010, respondent no. 1 is said to have passed an order dated

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22.01.2019 whereby gratuity amount of Rs. 11,95,600 was sanctioned and an amount of Rs. 9,94,732/- was withheld on the basis of alleged wrong fixation. It is not a case of the respondents that the husband of the petitioner has received excess payment by practicing fraud or by making misrepresentation.

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Law is well settled that no recovery could be made from the employees belonging to Class III and Class IV. It is also well settled law that in case excess payment was not made on account of any misrepresentation or fraud on the part of the employee, the same could not be recovered. It is also well settled that no recovery could be made without providing any opportunity or notice.

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Hon'ble Apex Court in the case of Dr. Gopalji Mishra Vs. State of U.P. & Others, 2004 (2) ESC 791 and was pleased to hold as follows in paragraph 20:

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"20. So far as the payment of excess amount, which the petitioner was not entitled is concerned, as there has been no misrepresentation or fraud on the part of the petitioner, he cannot be asked to refund the same. More so, petitioner might have spent the same considering his own money. Recovery thereof would cause great financial hardship to the petitioner. In such circumstances, recovery should not be permitted. [Vide Shyam babu Verma and others Vs Union of India and Others, 1994 2 SCC 521; Sahib Ram Vs State of Haryana and Others, 1995 Supp1 SCC 18 and V. Gangaram Vs Regional Joint Director and Others, 1997 AIR (SC) 2776]".

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It is not out of place to mention here that the basic proposition of law laid down in the above decision has been consistently followed by this Court time and again and reiterated in Dr. Avinash Chand Goel Vs. State of U.P. & Ors. 2011 5 ESC 3035 and in paragraph no.7, the following observation was made:

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"7. In the present case the established principle of law, that a person cannot be asked to repay the amount, which was not due to him, but has been paid to him without any misappropriation or fraud, is squarely applicable. In this case the petitioner had protested even to the alleged wrong fixation of the pay. He has given details of his entitlement for the correctness of the applicability of the pay scale and the benefits to be drawn by him under the orders of the Supreme Court in Chandra Prakash's case in, which not only the seniority but

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consequential benefits were also allowed to be given to those medical officers who were to be given promotions. In such case, the principle of law 'no work no pay' will not be applicable."

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This Court in the case of Hansraj Singh and Others Vs. State of U.P. and Others reported in 2015 (2) ADJ 581 , has considered all the judgment in this regard passed by the Hon'ble Apex Court.

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It is also relevant to mention here that in regard to the proposition of law laid down by the Hon'ble Apex Court and the different High Courts there arose contradictions on the views of the Hon'ble Judges and the stage of confusion started as to which judgment be implemented for the cause and the issue was settled by the Hon'ble Apex Court in the case of State of Punjab & Ors. Vs. Rafiq Masih (supra) , and the Hon'ble Apex Court considering all the judgments passed earlier in this regard, was pleased to pass the final direction and the conclusion was given in paragraph no.12 of the judgment, which is given as under:-

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"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:

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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 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 employees,

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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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From the perusal of the proposition of law laid down in the above mentioned judgment of the Hon'ble Apex Court as well as of this Court, established that the case of the petitioner clearly fall in that category and is not liable to refund any amount in pursuance of the impugned orders passed by the respondent authorities. As there has been no misrepresentation or fraud on the part of the husband of the petitioner.

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Accordingly, the impugned orders dated 23.09.2017 and 22.01.2019 passed by respondent no. 1 Additional Director Treasury and Pension,Varanasi Division, Varanasi and impugned order dated 13.07.2018 passed by respondent no. 3 Executive Engineer, Minor Irrigation Division, Jaunpur cannot be sustained and are liable to be quashed.

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With the aforesaid observations, the writ petition is allowed and the impugned orders dated 23.09.2017 and 22.01.2019 passed by respondent no. 1 Additional Director Treasury and Pension,Varanasi Division, Varanasi and impugned order dated 13.07.2018 passed by respondent no. 3 Executive Engineer, Minor Irrigation Division, Jaunpur are hereby quashed. Respondents are directed to refund the withheld amount of gratuity within a period of fortnight, failing which petitioner would be entitled to interest @ 6% per annum on the amount, which has been wrongly withheld by the respondents from the date of the impugned orders.

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Order Date :- 14.12.2020 RavindraKSingh

Smt. Asha Devi v. Additional Director Tresury and Pension and 3 Others

Case brief

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Smt. Asha Devi v. Additional Director Tresury and Pension and 3 Others

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