Shambhu Lal Nagarachi vs State Of Rajasthan And Ors

This writ petition has been filed by the petitioner aggrieved against the action of the respondents in recovering a sum of Rs.1,45,266/- from the petitioner.

It is, inter alia, indicated that the petitioner was accorded appointment on the post of Process Server and was granted first promotion as Helper and second promotion as Driver, however, despite grant of two promotions, the petitioner was accorded 2nd ACP on 28.08.2010. The petitioner retired on 30.04.2016. Thereafter on 24.05.2016 (Annex.-P/4/1) was issued by the respondents re-determining the entitlement of the petitioner after withdrawing the 2nd ACP granted to the petitioner. Based on the said order, a recovery of a sum of Rs.1,45,266/- was also determined against the petitioner and as the petitioner was threatened that in case, the amount was not deposited by the petitioner, all his retiral benefits would not be paid to him, and after the petitioner deposited a sum of Rs.1,45,266/- by a demand draft dated 18.06.2016, the petitioner has been released all his retiral benefits.

It is submitted by learned counsel for the petitioner that the action of the respondents in recovering the amount from the petitioner after his retirement is ex-facie contrary to the law laid down by Hon'ble Supreme Court in the case of State of Punjab & Ors. v. Rafiq Masih (White Washer) & Ors.: (2015) 4 SCC 334, wherein it is, inter alia, laid down that after retirement, any amount paid in excess to the employee, cannot be recovered and, therefore, the action of the respondents in recovering the amount from the petitioner deserves to be quashed and the same be ordered to be refunded back to the petitioner.

Learned counsel appearing for the respondents submitted that admittedly the amount was wrongly paid to the petitioner as after availing two promotions, he was not eligible for 2nd ACP and, therefore, the respondents were justified in raising demand qua the excess amount paid to the petitioner.

Further submissions have been made that once the petitioner has deposited the amount voluntarily, there is no reason now to refund back the same to the petitioner and, therefore, the petition deserves to be dismissed.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

It is not in dispute that the petitioner was granted benefit of 2nd ACP contrary to the Rules, however this is also a fact that the petitioner being a driver only, cannot have any role insofar as the grant of said benefit to the petitioner is concerned.

Further the benefit was granted in the year 2010 and the petitioner retired on 30.04.2016, till such time, no action was taken and after the petitioner had retired, by order dated 24.05.2016, the revision in the pay has been made and the amount has been directed to be recovered from the petitioner's entitlement.

Hon'ble Supreme Court in the case of Rafiq Masih (supra) laid down the parameters in which the recoveries made by the employer would be impermissible in law. The relevant clause would be clause (ii), which provides that recovery from retired employees, or employees who are due to retire within one year, of the order of recovery is impermissible.

Admittedly, the order dated 24.05.2016 (Annex.-P/4/1) has been issued after retirement of the petitioner and as the amount has been recovered after retirement, the same is contrary to the specific stipulation laid down by Hon'ble Supreme Court.

So far as the submissions made by learned counsel for the respondents that the petitioner has voluntarily deposited the amount, a judicial notice of the present aspect can be taken that as the respondents had passed the order post retirement, if the petitioner had not deposited the amount, his entire retiral benefits would have been left in lurch and, therefore, the petitioner had no option but to deposit the amount and on account of the said deposit, no estoppel can be claimed against the petitioner in seeking the refund of the amount.

In view of the above discussion, the writ petition filed by the petitioner is allowed. The action of the respondents in recovering a sum of Rs.1,45,266/- from the petitioner is quashed and set aside. The respondents are directed to refund back the amount of Rs.1,45,266/- to the petitioner.

The amount be paid back to the petitioner within a period of four weeks from the date of this order. In case, the said amount is not paid by the respondents within a period of four weeks, the amount would carry interest @ 6% per annum from the date of this order till such time that the amount is paid to the petitioner.