Jagannath Prasad Tripathi vs U.P. Public Services Tribunal

Heard Mr. Anupam Dwivedi, learned counsel for the petitioner as well as learned Standing Counsel.

The petitioner has assailed the judgment and order dated 15.4.2014 passed by the State Public Services Tribunal, Lucknow, in Claim Petition No. 1310 of 2011. The petitioner, before the State Public Services Tribunal has filed the claim petition challenging the order dated 15.7.2011, whereby his pay scale was re-fixed and an order of recovery dated 25.7.2011 of salary paid to him in excess of admissible amount was issued. The petitioner retired from the post of Junior Engineer on 30.6.2007. The petitioner''s pension was sanctioned on 17.04.2008. The State Government for implementation of the 6th Pay Commission with effect from 01.01.2006, revised the pay scale of the petitioner and re-fixed the petitioner''s pension vide order dated 15.07.2011. Since by that time, the petitioner had been paid the amount excess to the admissible amount, simultaneously, recovery order was also issued against him on 25.7.2011. The respondents had contested the matter before the Tribunal and submitted that the petitioner had been granted second promotional pay-scale by the Joint Director (Agriculture), Azamgarh, on 20.03.2001 in the pay scale of Rs. 8000-13500/- with effect from 01.03.2000. He attained the age of superannuation on 30.6.2007. While implementing the recommendation of the 6th Pay Commission, his pay scale was revised with effect from 01.04.2006, however, later on it was revealed that the petitioner had already been granted the second promotional pay scale by means of order dated 20.03.2001. On his undertaking given by him vide letter dated 03.02.2009 that if any excess amount has wrongly been paid to him against his entitlement, the same can be adjusted in future against the payment made or can be recovered by other means. The petitioner had been working as Class - II officer and he was granted the pay scale of Rs. 10,000-15,200/-, which was admissible to Class-I officer, since he was not entitled to get the salary in the pay scale of Rs. 10000-15,200/- an order of recovery was issued to him. Whereas learned counsel for the petitioner has submitted that the said fixation was done after petitioner''s retirement from service. The petitioner retired from service on 30.6.2007, whereas the pay scale was revised (reduced) later on, which is not permissible in the eyes of law.

It has been submitted that the salary paid to the petitioner may be in excess of the admissible amount has been saved by the Supreme Court in its judgment in State of Punjab and others v. Rafiq Masih (White Washer) and others, reported in (2015) 4 Supreme Court Cases 334. Relevant paragraph 18 of which is reproduced as under :-

"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 herein above, we may, as a ready reference, summarize 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.

In the case of Chandi Prasad Uniyal and others v. State of Uttarakhand and others, reported in 2012 (8) SCC 417 the Hon''ble Supreme Court has considered the same very question and held as under:-

"16. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment."

Since the payment made in excess to the employee has been restricted from the recovery from the retired employees the learned counsel for the petitioner has submitted that now it is no stage to enforce any such recovery against the petitioner.

We have considered the submissions of learned counsels for the parties and found that the petitioner had recorded his undertaking to refund the amount paid to him in excess only on 3.2.2009, whereas he had retired from service on 30.6.2007 and he had been granted the second promotional pay scale while he was in service by means of order dated 20.3.2001.

The enumeration of the dates mentioned above shows that the petitioner had been paid the second promotional pay scale vide order dated 20.03.2001 till the date of his retirement and the respondents had proceeded to re-fix the petitioner''s salary for the purpose of implementation of the 6th pay Commission only in 2009, which may effect the matter of fixation of pension of the petitioner, but whatever amount was paid to him prior to the date of fixation of the second promotional pay scale in 2009 that is not recoverable after his retirement in the light of law propounded by the Supreme Court in case of State of Punjab and others v. Rafiq Masih (White Washer) and others (Supra), therefore, to this extent the order passed by the learned Tribunal is interfered with by us and the respondents are restrained from recovering any such amount as was paid to the petitioner may be in excess to the pay scale admissible to him prior to 01.01.2006, which was the date of implementation of the 6th Pay Commission.

Accordingly the order dated 15.4.2014 passed by the State Public Services Tribunal, Lucknow is quashed and the writ petition stands allowed.