Ram Jeevan v. State of U.P. and 4 Others

Court No. - 34 Case :- WRIT - A No. - 14005 of 2023 Petitioner :- Ram Jeevan Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Mohd. Parvez,Mohammad Fahad Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J.

¶1Heard learned counsel for the parties and perused the record.

¶2Petitioner, who has retired as Head Constable Driver from the Reserve Police Lines, Etawah, has challenged the order dated

16.05.2023 whereby he has been saddled with the recovery for excess payment given to him on account of wrongful pay fixation.

¶3Counsel for the petitioner submits that petitioner was a group-C employee and it is very categorically stated in para 28 of the writ petition that he has not been responsible for any pay fixation done in relation to the petitioner and, therefore, consequential excess payment of salary, if any paid to him, cannot be recovered after retirement. He has placed reliance upon the judgment of Supreme Court in the case of State of Punjab vs. Rafiq Masih (White Washer) reported in 2015 (4) SCC 334.

¶4Per contra, learned Standing Counsel though sought to justify the recovery of excess payment made to the petitioner as the petitioner was not entitled to the pay fixation. Reply to what has been averred in para 28 of the writ petition, has been given in paragraphs 16 & 17 of the counter affidavit, but nothing has been stated as to whether petitioner was required to furnish any affidavit or undertaking at the time of last pay fixation.

¶5Admittedly, the law laid down by the Apex Court in case of Rafiq Masih (supra) clearly provides that no recovery can be pursued from a retired employee more especially, Group-C and Group-D employee. Still further those who have retired as such, no recovery can be pursued. In the case of Rafiq Masih (supra), it has been observed thus: "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:

(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."

¶6Above view has been followed subsequently by the Apex Court in the case of Thomas Daniel vs. State of Kerala & ors; (Live Law(SC) 438.

¶7From the above, it is, therefore, very clear that not only in respect of Group-C and Group-D employees, even in certain other cases this Court can exercise discretion to quash the order of recovery if justice so demands and the Court finds it quite equitable as well.

¶8It has been argued in his behalf that petitioner neither mislead the authorities, nor made any misrepresentation of fact for being conferred upon such pay scale benefits which according to the respondents have wrongly been given to the petitioner. It is, thus, clear that he is neither guilty for suppresio veri and suggestio falsi.

¶9This argument could not be successfully confronted by the learned Standing Counsel appearing for the State-respondents.

¶10In view of the above, the orders dated 16.05.2023 and

24.07.2023 (impugned in this petition) are hereby quashed.

¶11The legal position is also equally sound that ignorance of law is no excuse. In the case of The Swadehi Cotton Mills Co. Ltd. vs. The Government of U.P. & ors; 1975 (4) SCC 37, the Supreme Court vide paragraph 3 has held thus that "The courts merely interpret the law and do not make law. Ignorance of law is not an excuse................"

¶11Accordingly, recovery being against the law, petitioner is not only entitled to refund but interest as well. Thus, the amount already recovered/withheld is directed to be refunded along with 8% interest within two months of presentation of certified copy of this order.

¶12With the aforesaid directions and observations, writ petition succeeds and is allowed. Order Date :- 20.11.2023 P Kesari High Court of Judicature at Allahabad