Allowed

Daulat Ram v. Union of India and 4 Others

Allahabad HC22 Sept 2023WRIA/11056/2023

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed by a retired Group-C Railway Protection Force employee challenging recovery from his pension commutation for excess payment due to wrongful pay fixation. Relying on Supreme Court precedents prohibiting such recovery for Class-III/IV employees, the court set aside the impugned order and directed refund with interest.

What did the court decide?

The order dated 25.07.2022 is set aside. Rs. 2,49,685 with 6% interest is to be refunded within two months.

Daulat Ram Vs Union of India and 4 Others — Pension and Retirement Benefits | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:184181

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Court No. - 34

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Case :- WRIT - A No. - 11056 of 2023

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Petitioner :- Daulat Ram Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Ramesh Chandra Tiwari Counsel for Respondent :- A.S.G.I.,Paras Nath Rai

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Hon'ble Ajit Kumar,J.

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Heard learned counsel for the parties and perused the record.

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Petitioner is admittedly a Group-C employee working lastly on the post of Assistant Sub Inspector when he retired from the Railway Protection Force. Now under the order impugned, recovery has been made for the excess payment already made to the petitioner on account of wrongful pay fixation.

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Learned counsel for the petitioner has stated that the petitioner has never been informed earlier about any wrongful pay fixation. It is also submitted on behalf of the petitioner that the petitioner was never required to furnish any undertaking for any fixation done previously during service period. A counter affidavit has been filed in the matter in which also there is no plea taken that the petitioner was ever required to furnish any undertaking or affidavit at the time of pay fixation.

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In service jurisprudence, it is the employer's duty to offer remuneration for the service to be discharged by an employee and therefore, the periodical increments and allowances are to be paid by the employer himself. It is the employer who is to be blamed if he makes any wrongful assessment of benefit to be conferred upon employee and consequential pay fixation done and access amount paid. From the order impugned herein in this petition it is not reflected that the petitioner in any manner was instrumental in getting the pay fixation done by the respondents, nor the impugned order dated 25.07.2022 records any recital to the effect that the petitioner at any point of time was required to furnish any undertaking for fixation of pay.

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In such above view of the matter, therefore, if any, wrongful pay fixation has been done, the same could not have been recovered from the post retirement dues of the petitioner, more especially when the petitioner retired from a Group - C post.

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In the case of State of Punjab & Others v. Rafiq Masih (White Washer) etc., 2014 Law Suit (SC) 1075 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

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pursued. In the case of Rafiq Masih (supra) the Supreme Court has observed thus:

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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 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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Admittedly, the petitioners commutation of pension amount has been subjected to recovery for a sum of Rs. 6,13,430/- in the teeth of the law laid down by the Supreme Court which has been recently followed in the case of Thomas Daniel v. State of Kerala & Ors, AIR 2022 SC 2153 .

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In view of the above, writ petition succeeds and is allowed . The order dated 25.07.2022 is hereby set aside to the extent recovery has been made. Since the ignorance of law is no excuse, petitioner is also held entitled for the interest upon the wrongful recovery made. The entire amount to the tune of Rs. 2,49,685/- shall be refunded back to the petitioner with an interest @ 6% from the date of recovery done till the actual payment made. It is directed that the entire amount shall be refunded to the petitioner along with interest, as directed herein above, within a maximum period of two months from the date of production of certified copy of this order. .

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Order Date :- 22.9.2023 P Kesari

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Digitally signed by :- PRACHI KESARWANI High Court of Judicature at Allahabad

Daulat Ram v. Union of India and 4 Others

Case brief

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Daulat Ram v. Union of India and 4 Others

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