The Allahabad High Court has quashed the order to recover the excess payment made due to wrong pay fixation from a retired sub-inspector of the police department.
A Single Bench of Justice J.J Munir passed this order while hearing a petition filed by Ravi Shankar Tripathi.
The petition is directed against the order dated 06.03.2024 passed by the Deputy Commissioner of Police, Accounts, Kanpur Nagar directing recovery of a sum of Rs 3,12,926/- from the petitioner’s gratuity on account of emoluments paid in excess of his entitlement while in service.
The petitioner was a Sub Inspector of Police, who retired on 30.04.2023.
The case of the petitioner is that the respondents do not say that the petitioner is in any manner responsible for the incorrect fixation of his salary or emoluments which led to the excess payment that is sought to be recovered by dint of the impugned order.
The petitioner’s case is that he is a Group ‘C’ employee and a retired man.
His case is clearly covered by the principles in State of Punjab and others vs Rafeeq Masih (White Washer) and others, (2015) 4 SCC 334 and Thomas Daniel vs. State of Kerala and others, 2022 SCC OnLine SC 536. Therefore, the respondents could not have recovered anything from his gratuity.
The stand taken in the counter affidavit is in justification of the impugned order, by pointing out that indeed the petitioner was paid in excess of his emoluments, the Court noted.
The stand taken on behalf of the respondents, the Court found does not at all answer the way the petitioner’s rights would work out under the principles laid down by the Supreme Court in Rafeeq Masih (supra) and Thomas Daniel (Supra).
The Court observed that,
Admittedly, the petitioner is not said to be responsible for the incorrect fixation of his pay that led to excess payment of emoluments while in service. It is also not disputed that the petitioner is a Group ‘C’ employee and a retired man. The recovery has been effected at the time of his retirement deducting it from his gratuity.
Likewise, the same principle was followed by the Supreme Court in Thomas Daniel. The said principles have been endorsed in a very recent decision of the Supreme Court in Jagdish Prasad Singh vs State of Bihar and others, 2024 SCC OnLine SC 1909.
The respondents have taken a firm stand that they have deducted rightly but have refused to look to the law laid down by the Supreme Court as regards their right to recover from Group ‘C’ employees and retired men emoluments that have been paid in excess on account of the establishment’s mistake to which the employee is not a party. The stand taken by the respondents including that by the Finance Controller/CAO, U.P Police Headquarters, Lucknow placed before us through the affidavit of the Additional Commissioner is obdurate.
No one can ignore the law laid down by the Supreme Court and choose to justify his action by relying on Government Orders or Rules contrary to the law declared by the Supreme Court or the Court. The rights of the petitioner against recovery are not based on what has been paid in excess but on a right governed by a violation of Article 14 of the Constitution that is to be given effect to, whatever be the position of accounts or provisions of the Government Orders.
“Knowing the position of the law well, the Additional Commissioner and the respondents, which includes the Finance Controller/CAO, U.P Police Headquarters, Lucknow have chosen to pass the order impugned in violation of the law laid down by the Supreme Court and defended it to hilt. They have driven the retired employee to an avoidable litigation for the enforcement of his right. We are of the considered opinion that the respondents are liable to pay penal costs”, the Court further observed while allowing the petition.
“The order dated 06.03.2024 is quashed. A mandamus is issued to the Finance Controller/CAO, U.P Police Headquarters, Lucknow, the Additional Commissioner of Police (Accounts), Kanpur Nagar, the Senior Treasury Officer, District Sant Ravidas Nagar and the Superintendent of Police, Sant Ravidas Nagar to ensure amongst themselves that the sum of Rs 3,12,926/- is refunded to the petitioner by crediting it to his bank accounts within six weeks of date without fail.
The respondents shall pay costs to the petitioner in the sum of Rs 20,000/- half of which shall be recoverable from the Finance Controller/CAO, U.P Police Headquarters, Lucknow and the balance from the Additional Commissioner of Police (Accounts), Kanpur Nagar. The costs shall be deposited within six weeks with the Registrar General of the Court, who shall remit the same to the petitioner in his account. In the event, any of the respondents do not pay their part of the costs within the time allowed, the Registrar General, on an application by the petitioner, shall take immediate steps to recover the same costs as arrears of land revenue by issue of recovery certificates to the Collectors concerned,” the order reads.