WPSS/2349/2019 of ABDUL WAHID Vs STATE OF UTTARAKHAND

It is contended by petitioners that in terms of judgment dated 19.09.1991 passed in Writ Petition No. 4209 of 1988, pay and allowances of the petitioners were re-fixed and they were given all benefits w.e.f. 19.09.1991, pursuant to the judgment rendered in the said petition. This according to petitioners was done by the Corporation in terms of the order passed by Managing Director, on 15.07.2010. Subsequently, State Government raised objection against grant of benefit of Assured Career Progression Scheme (hereinafter referred to as ‘ACP’) to the petitioners w.e.f. 19.09.1991 by holding that since petitioners were regularised in service only on 23.12.2002, therefore, services rendered by them after their regularisation alone can be considered for grant of ACP. The said objection was raised by State Government, in view of the objection raised by Special Audit Team of the State Government. Subsequently on 20.09.2019, the Regional Manager, Kumaon Region, Haldwani passed an order against the petitioner. Thus, feeling aggrieved, petitioners have approached this Court. Learned counsels for the petitioners contend that petitioners served and retired from the post of Scaler, which is Group-D post in Uttarakhand Forest Development Corporation, therefore, in view of the law laid down by Hon’ble Supreme Court in the case of State of Punjab & others Vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334, recovery of money from them would be impermissible. The legal position regarding recovery of excess amount paid to the employees has been summarised in paragraph no. 18 of the said judgment, which is reproduced below:-“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 hereinabove, we may, as ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group and Group service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for 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 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.” This view was reiterated by Hon’ble Supreme Court in the judgment rendered in Civil Appeal No. 7115 of 2010 “Thomas Daniel v. State of Kerala and others”. Paragraph no. 13 of the said judgment is reproduced below:- “(13) In State of Punjab and Others v. Rafiq Masih (White Washer) and Others4 wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and 4 (2015) 4 SCC 334 disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:“8. As between two parties, if determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such situation, the employee’s right would outbalance, and therefore eclipse, the right of the employer to recover. xxx xxx xxx18. 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 hereinabove, we may, as ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group and Group service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for 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 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.” Learned counsels for the petitioners point out that most of the petitioners retired from service prior to passing of the impugned order. It is further contended by them that some petitioners retired in 2019 or in 2020, however, all the petitioners retired upto 2020. It is not in dispute that decision to grant benefit of ACP was taken by the Competent Authority in Uttarakhand Forest Development Corporation. It is contended on behalf of the petitioners that the said decision was taken in view of the judgment rendered by Hon’ble Allahabad High Court in Writ Petition No. 4209 of 1988, however, this contention is disputed by learned counsel for the respondents and they submit that there was no such direction in the said judgment to grant benefit available to regular employees to daily wage employees, w.e.f. 1991. However, the fact remains that petitioners neither played fraud nor misrepresented any fact for getting benefit

of ACP. The benefit of ACP was granted to petitioners in the year 2010 and the decision to recover excess payment was taken in 2019, and the recovery order was passed on 20.10.2019. In view of the law laid down by Hon’ble Supreme Court in the case of State of Punjab & others Vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334 and in Thomas Daniel v. State of Kerala and others, this Court has no hesitation in holding that the excess amount, if any, paid to petitioners cannot be recovered at this late stage, after their retirement. Without going into other issues raised by petitioners in these writ petitions, writ petitions are disposed of by restraining the respondents from recovering any amount from the petitioners pursuant to the impugned order dated 05.02.2019. However, it is made clear that the respondents will be under no liability to refund the amount, already recovered from petitioners, pursuant to the impugned recovery order. Respondent shall release the retiral dues of petitioners, without making any unauthorised deductions, within six months. (Manoj Kumar Tiwari, J.) 19.10.2022Navin