(1) The present writ petition has been filed by the petitioner for quashing of the order dated 21.01.2016 passed by Opposite Party No.3, the District Development Officer, District - Sultanpur, directing the Opposite Party No.4 the Senior Treasurer, District - Sultanpur to recover/adjust the excess payment made to the petitioner amounting to Rs.2,48,673/- from his gratuity amount and for a direction to the Opposite Party No.2 to make payment of gratuity amount along with interest, which has been recovered/adjusted by the impugned order dated 21.01.2016.
(2) The petitioner retired from the post of Gram Vikas Adhikari (Class-III Post) on 31.01.2015. An order dated 31.10.2012 was issued by Opposite Party No.3, in which, the name of the petitioner found place at Sr. No.10, by which, the Grade Pay of the petitioner was upgraded from Rs.4,800/- to Rs.5,400/- w.e.f. 01.12.2008 in pursuance of the Government Orders issued from time to time and, thereafter, the petitioner had started getting the Grade Pay of Rs.5,400/- till the date of his retirement.
(3) Learned counsel for the petitioner has submitted that after about one year of the retirement of the petitioner, the impugned order dated 21.01.2016 has been issued by the Opposite Party No.3 directing the Opposite Party No.4 to recover/adjust the excess payment made to the petitioner i.e. Rs.2,48,673/- from the gratuity amount along with interest. It is further submitted that the order dated 21.01.2016 has been passed in contravention of principles of natural justice, since prior to the passing of the order, neither any show cause notice was given to the petitioner, nor any opportunity of hearing was provided.
(4) Learned counsel for the petitioner has also placed reliance on the judgement of Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer), reported in [(2015) 4 SCC 334], to submit that no recovery can be made from the Class III and retired employees or the employees who are due to retire within one year, of the order of retirement and, that the case is squarely covered by the said judgment.
(5) On the other hand, learned State Counsel has made twofold submissions. Firstly, that the impugned order dated 21.01.2016 has been passed in pursuance of the order dated 04.09.2013 passed by the Commissioner, Rural Development, Lucknow, U.P., wherein, it was instructed that the sanction of Grade Pay of Rs.5,400/- to the petitioner was against the provisions of relevant Government Orders and directed for making recovery of the amount paid in excess to the petitioner, a copy of which has been enclosed as Annexure No. CA-2 to the counter affidavit. Secondly, that the petitioner on 06.07.2015 requested the Opposite Party No.3 for fixation of his Grade Pay as Rs.4,800/- and to sanction his pension after making deductions of the amount paid to him in excess due to wrong fixation of grade pay. It was only, thereafter, that the Opposite Party No.3 vide its letter dated 10.09.2015 referred the pension matter to the Additional Director, Treasuries and Pension, Faizabad Division, Faizabad for sanctioning the pension, gratuity, etc. along with the proposal to adjust the amount paid in excess to the tune of Rs.2,48,673/-.
(6) Heard Shir Vyas Narayan Shukla, learned counsel for the petitioner and learned State Counsel for the opposite parties.
(7) As far as first argument of learned State Counsel is concerned, the Commissioner did not utter a single word as to how and in what manner Government Orders were violated while passing order dated 31.10.2012 by which higher grade pay was given to the petitioner. The order was passed on 4.9.2013, but higher grade pay was continued to be paid to the petitioner till his retirement in the year 2015. The order dated 04.09.2013 is addressed to the District Development Officer, Allahabad, even its copy was not endorsed to the petitioner.
(8) As far as the second argument is concerned, it is to be noted that the petitioner retired on 31.01.2015 and upto July, i.e. for about 7 months of retirement not even a single penny was paid, which intelled extremely harsh consequences to the petitioner, rather he was required, as stated in Para-4 of the rejoinder affidavit (not disputed by the State), if the petitioner wanted sanction of his pension, the petitioner had to give an application with the prayer that the petitioner agreed for Grade Pay of Rs.4,800/- in place of Grade Pay of Rs.5400/- and also for adjusting the payment of excess amount. It was under these compelling circumstances that the petitioner succumbed to such pressure to overcome his penury condition as a retired person, who would be only dependent on his post-retiral dues and his pension and he was finding it difficult to make his both ends meet. Otherwise, there was no occasion to give any such thing in writing by a person of ordinary prudence. No person may himself, all of a sudden and without any reason, volunteer to give in writing for making recoveries, etc. and fix the pension in lower grade pay than what he had been getting till the last date in service. Therefore, much value cannot be attached to such a letter. The position as explained about the said letter in the rejoinder affidavit cannot be outrightly said to be implausible, specially in the circumstances of hardship which the petitioner was going through during that period.
(9) However, be that as it may, the legal position is also well settled in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) (supra), law is clearly laid down as to the circumstances in which recoveries from retired employees is impermissible (emphasis supplied). The relevant para is quoted hereinbelow: -
"18. 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."
(10) The specific pleading and submission on behalf of the petitioner is that prior to the passing of the impugned order, at no point of time, any opportunity was provided to the petitioner, the same has neither been denied, nor disputed in the counter affidavit. The position as emerges from the record is that there is no allegation of misrepresentation or fraud on the part of the petitioner in the matter.
(11) The order f
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or deduction from the gratuity has been passed unmindful of the Provisions of Gratuity Act, 1972, which does not permit recovery from the gratuity amount except with certain exception. The case of the petitioner does not fall under those exceptions. (12) In view of the discussion held hereinabove, the impugned order dated 21.01.2016 cannot be sustained and it is set aside and the opposite parties are directed to release the amount of Rs.2,48,673/- with 7% interest to the petitioner, calculated w.e.f. 31.01.2015 i.e. the date of retirement of the petitioner till the date of actual payment made. The opposite parties are further directed to make payment within a period of three months from the date of service of the copy of this order. (13) The writ petition is accordingly allowed. No order as to the costs.