IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition ( S/ S) No. 335 of 2023

Surendra Dutt Gairola … Petitioner

Versus

State of Uttarakhand & Others … Respondents

With

Writ Petition ( S/ S) No. 568 of 2023 Writ Petition ( S/ S) No. 975 of 2023 Writ Petition ( S/ S) No. 1345 of 2023 Writ Petition ( S/ S) No. 1899 of 2023 Writ Petition ( S/ S) No. 2246 of 2023

Mr. Pooran Singh Rawat, Advocate, i/b Mr. M.C. Upadhyaya,

Advocate for the petitioners.

Mr. Ganesh Dutt Kandpal, Deputy AG, with Mr. Narayan Dutt,

Standing Counsel, for the State.

J U D G M E N T Inspector on 30.6.2022. According to petitioner, he is entitled to a sum of ₹12,58,059/- as gratuity, however a sum of ₹3,72,021/- has been illegally deducted and, as per the Pension/Gratuity Payment Order, the gratuity payable to him is shown as ₹8,86,038/- only. Petitioner has challenged deduction of the aforesaid amount from his gratuity.

Hon’ble Manoj Kumar Tiwari, J.

Petitioners were appointed as Constable

in Police Department and they retired upon completing the age of superannuation. They are aggrieved by recovery made from their retiral dues. 2. Since common questions of fact and law are involved in these writ petitions, these are being heard and decided together by this common judgment. However, for brevity, facts of Writ Petition (S/S) No. 335 of 2023 alone are being

considered and discussed here.

3. Petitioner in Writ Petition (S/S) No. 335 of 2023 was appointed as Constable in State Police on 1.1.1982 and he retired from the post of Sub

4. A counter affidavit has been filed by Superintendent of Police, Rudraprayag, wherein it is stated that the Finance Controller, Police Headquarters found the pay fixation of the petitioner to be erroneous.

5. Learned State Counsel, by referring to the counter affidavit filed on behalf of respondent no. 4, submits that due to mistake, the pay of the petitioner was fixed at higher level than what he was entitled to and ultimately the competent authority corrected the mistake and after calculation, it was found that excess amount was paid to the petitioner due to wrong fixation of pay, which has now been deducted from his gratuity.

6. Hon’ble Supreme Court in the case of State of Punjab v. Rafiq Masih, reported as (2015) 4 SCC 334, has held that in certain conditions, excess payment mistakenly made by the employer shall not be recoverable.

7. Learned State Counsel, however, submits that the protection of the aforesaid law would not be available if (i) the concerned employee has received excess payment by playing fraud or by adopting deceitful means; or (ii) he, before receiving the amount, has given an undertaking that he will refund whole or part of the amount, in case it is later found that he is not entitled thereto.

8. Elaborating his submission, learned State Counsel contends that an employee, who received excess payment, if is responsible for receiving such excess payment, then he will not be entitled to any protection, in law or in equity, against recovery of such excess amount. Learned State Counsel further submits that no one can be permitted to take benefit of his own wrong, therefore an employee, who has induced his employer to pay him excess amount by misrepresentation, cannot then contend that whatever is received by him cannot be recovered.

9. Learned State Counsel relied upon a judgment rendered in the case of High Court of Punjab and Haryana & Others v. Jagdev Singh, reported as (2016) 14 SCC 267. In the said judgment, Hon’ble Supreme Court held that the principle that no recovery can be made from retired employees, or employees who are due to retire within one year, will not be attracted to a case where the employee to whom the excess payment is made was clearly placed on notice that any payment found to have been made in excess would be required to be refunded and the employee furnished an undertaking while opting for the revised pay scale. Para 9, 10, 11 and 12 of the said judgment are extracted below:

“9 The submission of the Respo