Gaj Ram Singh vs State of U.P. and Others

Dilip Gupta, J.—The petitioner, who retired on 31st January, 2005 as Cane Development Inspector, has filed this petition for quashing the order dated 20th December, 2008 by which an amount of Rs. 20,000/- has been deducted from the payment of gratuity to the petitioner since it was paid in excess to the petitioner while he was in service.

Learned Counsel for the petitioner submitted that since the petitioner was not at fault for wrong fixation of the pay, the said amount cannot be recovered from him after his retirement and in support of this contention he has relied upon a Division Bench judgment of this Court in Smt. Ramawati Devi v. State of U.P. and Ors. 2010 (5) ADJ 304.

Two counter affidavits have been filed on behalf of the respondents. In the counter affidavit filed by the District Cane Officer, it has been stated that due to clerical mistake, excess payment was made to the petitioner from 1981 till the date of his retirement and as the aforesaid infirmity was detected after his retirement an amount of Rs. 20,000/- has been deducted from the retiral dues. In the counter affidavit filed on behalf of the Additional Director, Treasury and Pension, the same facts have been stated.

The Division Bench judgment of this Court in Ramawati Devi (supra) after referring to the decisions of the Supreme Court in Comptroller and Auditor General of India and Others Vs. Farid Sattar, Union of India v. Sujatha Vedachalam (Smt.) and Anr. 2000 SCC 882 and Syed Abdul Qadir and Others Vs. State of Bihar and Others, has held that excess amount cannot be recovered after retirement if there is no fraud or misrepresentation by an employee and the relevant observations are:

The principle evolved by the Supreme Court is an exception to unjust enrichment of the employee. It is applicable only to those cases, where the wrong fixation was not attributed to any act or representation on the part of the employee.

In the present case we find that there is no allegation that the petitioner''s husband had misrepresented or played fraud with the department. He was appointed on adhoc basis on 28.11.1977 and had joined as AS Medical Officer RHS. He was given first promotional pay scale by the Chief Medical Officer, Ballia by order dated 13.5.1993 w.e.f. 1.7.1986 and the second promotional pay scale w.e.f. 10.5.1991. The service book of the petitioner annexed to the counter affidavit as Annexure No. 2 shows that these entries were duly made by the Chief Medical Officer and that the petitioner had drawn the salary in the pay scale allowed to him. The respondents did not take care to correct these orders during the life time of the petitioner''s husband.

In our view the petitioner''s husband can not be faulted as there is nothing attributable to him for grant of promotional pay scale. He was ultimately regularised. In the circumstances, the salary drawn by him in the promotional pay scale can not be withdrawn from him, and in any case from his wife after his death.

The writ petition is allowed. The respondents are directed to pay the entire gratuity amount, which has been deducted from the emoluments payable on the retiral benefits to the petitioner''s husband and to be received by her. The entire amount of gratuity shall be paid to her within a period of three months from the date a certified copy of this order is produced before him.

(Emphasis supplied)

In the present petition all that has been stated in the counter affidavit is that the excess payment was made to the petitioner by mistake. In view of the aforesaid decision of the Court, the order dated 20th December, 2008 is set aside. The respondents shall pay the amount of Rs. 20,000/- deducted from the gratuity to the petitioner within three months with interest @ 6% from the date it was deducted to the date of payment.

The writ petition is allowed to the extent indicated above.