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IN THE HIGH COURT OF ALLAHABAD
HON'BLE RAJESH SINGH CHAUHAN, J.
Naresh Kumar Mishra - Petitioner
Versus
State Of Uttar Pradesh Thru. Addl. Chief Secy. Home Deptt. Lko. And Others - Respondents
Writ A. No.5911 of 2024
Decided On : 30-07-2024
RECOVERY - PENSION AND SALARY FIXATION - G.O. 16.01.2007, Sushil Kumar Singhal Case, Rafiq Masih Case, Jagdev Singh Case - The court discussed the Government Order dated 16.01.2007, which restricts the recovery of excess payments made to employees beyond a certain period prior to retirement. The court interpreted the provisions of this order alongside relevant Supreme Court judgments, establishing that without a specific undertaking from the employee at the time of excess payment, recovery is impermissible. This legal framework influenced the court's decision to quash the recovery orders against the petitioner and mandate the refund of the deducted amount.
Fact of the Case:
The petitioner, a retired Sub Inspector, challenged the recovery of Rs.5,38,781/- from his pension, which was based on a salary revision dating back to 2008. The petitioner argued that the recovery was made without a specific undertaking regarding excess payments and violated the Government Order dated 16.01.2007.
Finding of the Court:
The court found that the recovery was not permissible as it violated the provisions of the Government Order and relevant Supreme Court judgments. The absence of a specific undertaking from the petitioner at the time of excess payment further supported the court's decision.
Issues: Whether the recovery of excess salary from the petitioner was lawful given the absence of a specific undertaking and the provisions of the Government Order dated 16.01.2007.
Ratio Decidendi: The court held that recoveries of excess payments made to employees cannot be executed without a specific undertaking at the time of payment, as established in the Supreme Court judgments referenced. The Government Order dated 16.01.2007 limits the examination of records to 34 months prior to retirement, reinforcing the court's decision.
Final Decision: The writ petition was allowed, the recovery orders were quashed, and the opposite parties were directed to refund the deducted amount and fix the pension based on the last basic pay drawn by the petitioner.
JUDGMENT :
(Hon'ble Rajesh Singh Chauhan, J.) :
1. Heard Sri Shashank Pandey, learned counsel for the petitioner and Sri Amarnath Singh Baghel, learned Standing Counsel for the State-opposite parties.
2. By means of this petition, the petitioner has prayed following main reliefs:-
(ii) Issue a writ, order or direction in the nature of mandamus directing Opposite Parties to repay/refund the deducted/recovered amount Rs.5,38,781 /-along with interest at the rate of 12% per annum deducted from commuted pension payable to the petitioner and further be pleased to direct the Opposite Parties to fix the pension of the petitioner on the basis of last basic pay Rs.64,100/-drawn by the petitioner at the time of retirement."
3. Learned Standing Counsel has submitted that he has received complete instructions from the Superintendent of Police, Rampur, therefore, those instructions may be perused, the same are taken on record.
4. As per the aforesaid instructions itself, the petitioner retired from the post of Sub Inspector, which is a Class-III post, on 30.04.2023 and one undertaking has been received from him on 21.03.2023, which is before his retirement. As per the aforesaid undertaking, no specific undertaking has been taken from the petitioner in respect of any particular payment if that has been given in excess to its admissibility would be recoverable. Besides, on typed proforma, general undertaking has been taken from the petitioner and on one typed proforma, one indemnity bond has been taken from the petitioner without filling the detail of the petitioner properly. The aforesaid fact makes it crystal clear that as an eyewash, the undertaking was taken from the petitioner without indicating specifically that if any excess amount is paid to the petitioner at particular time, the same may be recovered from him. Perusal of the impugned order clearly reveals that the benefit of pay scale was provided to the petitioner w.e.f. 01.12.2008 and at the time of making such payment, admittedly, no undertaking was taken from the petitioner by the Department and the impugned amount, which has been recovered from the petitioner at the time of his retirement, is relating to the year 2008.
5. Learned counsel for the petitioner has drawn attention of this Court towards Annexure No.7 of the writ petition, which is a Government Order dated 16.01.2007 passed by the Principal Secretary of Finance addressing to all the Head of Departments of the State of Uttar Pradesh wherein vide para-4 (1), it has been categorically indicated that at the time of retirement or after the retirement, record of the employee of last 34 months may be examined, not beyond that, but in the present case, record of the petitioner is being examined from the year 2008, which is much beyond the period of 34 months. Attention has been drawn towards the judgment and order dated 17.04.2014 passed by the Apex Court in re; Sushil Kumar Singhal Vs. Pramukh Sachiv Irrigation Department & Others, Civil appeal No.5262 of 2008, referring paras 7, 10 & 11, which read as under:-
Recoveries of excess salary from retired employees are impermissible without a specific undertaking at the time of payment, in accordance with the Government Order dated 16.01.2007 and relevant Supre....
Recovery of excess payments from retired Class-IV employees is impermissible without due process and violates principles of natural justice.
The main legal point established in the judgment is the requirement to provide an opportunity of hearing before passing orders involving civil consequences and monetary impact on the employee.
The central legal point established in the judgment is the requirement to provide an opportunity of hearing to the employee before passing any order involving civil consequences and monetary impact, ....
Point of Law : Retirement of service - If any mistake committed by the department in making pay fixation of an employee is rectified after the retirement of an employee withdrawing the benefit which ....
Recovery of excess salary from retired employees is impermissible without prior notice or undertaking, as established by Supreme Court precedents.
Recovery of excess salary cannot be enforced without prior hearing, especially when no fraud or misrepresentation by the employee is established.
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