The Allahabad High Court has dismissed an appeal saying that the payment made in excess cannot be recovered from an employee who has retired from the service of the state if there is no undertaking from him.
The Division Bench of Justice Manoj Misra and Justice Vikas Budhwar passed this order while hearing a Special Appeal Defective filed by Meerut Development Authority.
The intra-court appeal has been filed by the appellant (Respondent) against the order dated 11.07.2022 passed by the Single Judge whereby the writ petition of the writ petitioner (respondent no1) was allowed thereby quashing the order dated 17.05.2019 passed by Incharge-Officer (Establishment), Meerut Development Authority, Meerut in so far as it seeks to adjust Rs18,19,088/-, as excess payment made to the writ petitioner, against the retiral dues payable.
The case of the petitioner before the Single Judge was that he was initially appointed to the post of Lekhpal in Meerut Development Authority Meerut on 27.7.1982 in the pay-scale of “Rs185-3-215-EB-4-235-EB-6-265” and he assumed the charge on the said post on 04.08.1982.
The said pay scale was revised by the U.P Government w.e.f 01.07.1979 in the new pay scale of 330-495 and with effect from 01.01.1986 in the pay scale of Rs 825-1200.
The Court noted that,
It appears from the record that the Lekhpal posted in the Revenue Department of the State of U.P was granted further revision in the pay-scale to the tune of Rs 950-1500 on 01.01.1986.
The appellant (Meerut Development Authority, Meerut) in its own wisdom took a conscious decision to make the pay scale of Lekhpals working under the appellant at part with those working in the Revenue Department of the State and thereby issued an order dated 15.11.1994 sanctioning/granting pay scale of Rs 950-1500 to the Lekhpals working and posted in Meerut Development Authority, Meerut. Whereafter from time to time increments etc. were granted and on 29.07.1999, the appellant herein further fixed the salary of the writ petitioner in the pay-scale of Rs 3050-75-3950-80-4590 (revised) since 01.01.1996.
Thereafter, on 25.07.2006, the appellant further proceeded to accord first promotional pay-scale with effect from 04.08.1996 in the pay-scale of Rs 3200-85-4900 on completion of 14 years of satisfactory service and additional increment w.e.f 04.08.2001 on completing 19 years of service.
In the order dated 25.07.2006 issued by the Deputy Secretary, Meerut Development Authority, Meerut a recital is there that in case any objection is raised by the State Government, then recovery would be made at one go. Whereafter, the appellant issued an order dated 22.01.2007 granting additional increment of Rs 4500-125-7000 to the writ petitioner.
On 02.01.2015, the appellant granted a second promotional pay-scale of Rs.9300- 34800 GP-4200 since 4.8.2006 to the writ petitioner on completion of 24 years of service and on the promotional pay scale salary was fixed vide order dated 17.01.2015. Records further reveal that the writ petitioner superannuated on 31.01.2019 and the last basic pay drawn was Rs 56,900/-.
Post-retirement of the writ petitioner, the Incharge Officer (Establishment), Meerut Development Authority, Meerut proceeded to pass an order dated 17.05.2019 alleging that the writ petitioner was not entitled to the revised pay-scale in the same term as extended to Lekhpals in State Revenue Department, in as much as, as the writ petitioner was an employee of Meerut Development Authority, Meerut and as such was only entitled to the basic pay-scale of Rs 330-495 as revised to Rs 825-1200 and not the pay-scale of the Lekhpals working in the revenue department of the State of U.P which was Rs 340-550 revised to Rs 950-1500 and thereby directed for deduction/adjustment of Rs 18,19,088 from the post retiral dues. The order also directed for payment of gratuity for 33 years of service as against the service period of 36 years 5 months 27 days.
The Single Judge after an exchange of affidavits proceeded to allow the writ petition of the writ petitioner while quashing the order dated 17.05.2019 and directing the appellant to fix the pension of the petitioner on the last salary drawn with a further direction to pay the entire post-retiral dues within a period of three months along with interest @ 8% per annum. Aggrieved by the order of the Single Judge dated 11.07.2022 as corrected on 15.07.2019, the appellant has filed the appeal.
Suresh Maurya holding brief of J.N Maurya for the appellant has argued that the order passed by the Single Judge directing payment of the entire post-retiral dues within the stipulated period along with interest @ 8% per annum is not justified inasmuch as, the writ petitioner from the very inception knew that there was difference in the pay-scale of Lekhpals working in Revenue Department of the State of U.P with those of the Meerut Development Authority, thus, the revision made in the pay-scale of the Revenue Department of the State of U.P could not automatically apply, particularly, in the absence of corresponding change in the base pay-scale.
Maurya has further argued that the principle of “equal pay for equal work” is not applicable in the facts of the case, as there is not only a vast difference in the nature of duties performed by the Lekhpals in the Revenue Department of the State of U.P. vis-a-vis those employed in the Meerut Development Authority. Furthermore, they have different service rules.
The argument of the counsel for the appellant is that the writ petitioner was not only made aware of the terms on which the said benefits were being allowed but the order dated 25.7.2006 also gave them a warning therefore, acceptance of benefits thereunder, amounts to an undertaking to refund whenever found erroneous.
Countering the said submission, Jitendra Rana Counsel for the respondent has argued that it is not a case wherein the writ petitioner had either concealed, misrepresented, or committed any fraud in getting the said benefits, it is the appellant who had granted the benefits. According to him, the judgment in the case of State of Punjab & others Vs Rafiq Masih (White Washer) & others (supra), consequently, applies in the facts of the case.
He next contended that the order dated 25.07.2006 may have stipulated about future adjustment but acceptance of the benefits do not amount to an undertaking as to use it to withhold the retiral dues.
The Court observed that,
Undisputedly, the writ petitioner was appointed as a Lekhpal on 27.07.1982 in the Meerut Development Authority, Meerut and he assumed charge on 4.8.1982 in the pay-scale of Rs185-3- 215-EB-4-235-EB-6-265.
It is not in dispute that revision was made in the pay-scale of the Lekhpals in the Revenue Department of the State of U.P on 01.01.1979 and 01.01.1986. The writ petitioner was granted benefits by the appellant while according to him a pay-scale of Rs.950-1500 with effect from 01.01.1986 vide order dated 15.11.1994.
The appellant himself had fixed the salary of the writ petitioner in pay-scale of Rs 3050-75-3950-80-4590 (revised) / Rs 950-1500 (unrevised) since 01.01.1996. The writ petitioner was also accorded first promotional pay-scale with effect from 4.8.1986 on Rs 3200- 85-4900 after completion of 14 years and making it admissible for a further increment after 19 years. It has also come on record that the writ petitioner was granted the benefit of pay scale of Rs 4500-125-7000 after completion of 19 years.
Notably on 02.01.2015, the appellant was admitted to pay-scale of Rs 5500-9000 / revised pay-scale of Rs 9300-34800 GP 4200 with effect from 01.01.2006 vide order dated 02.01.2015. Except a bald averment in the counter affidavit filed by the Joint Secretary, Meerut Development Authority, Meerut before the Writ-Court that the writ petitioner had misrepresented the facts before the Vice-Chairman of Meerut Development Authority, Meerut to obtain the said benefits which were otherwise not admissible to him, there is nothing brought on record to demonstrate as to in what manner, the writ petitioner had misrepresented the facts to the appellant. There is not even a disclosure as to what was that misrepresentation.
“The theory propounded by the appellant that the recital in the order dated 25.07.2006 that the benefit granted to the writ petitioner would be recoverable if any objection is raised by the State Government amounts to an undertaking, is completely misconceived. The aforesaid recital is a mere warning. To use the said warning the appellant had to act swiftly. Neither it can condone the delay on their part nor it can be used as an undertaking inasmuch as the revision was not sought by the writ petitioner coupled with a promise that if there is an excess payment, the same be recovered. Consequently, the judgment in the case of State of Punjab & others Vs Rafiq Masih (White Washer) & others (supra) squarely applies on the facts of the case, particularly, when nothing has been brought on record to demonstrate that the writ petitioner had concealed, misrepresented or had committed fraud in obtaining the said benefit.
Moreover, the document dated 25.07.2006 itself makes it clear that the appellant was conscious as to in what circumstances the benefits were extended.
So far as reliance on the judgment in the case of Jagdev Singh (supra) is concerned, the same is of no avail to the appellant as the Apex Court in the said case had to deal with a contingency wherein there existed a specific undertaking of the employee/ beneficiary that it would be open for the employer to recover the excess amount, if any, paid.
In the case, the writ petitioner gave no undertaking as was there in Jagdev Singh’s case (supra). Consequently, the said decision is distinguishable by facts. Another facet of the matter which needs to be noticed in the case is that the writ petitioner stood retired on 31.01.2019, the excess payments, if any, started two decades before the date of superannuation. For that reason also, the recovery was bad in light of the decision in Rafiq Masih’s case (supra).
In so far as the dispute relating to gratuity is concerned, the Single Judge has issued no direction in respect thereof, therefore, we do not propose to address the said issue, particularly, when there is no appeal of the writ petitioner. For all the reasons above, we do not find any error in the order of the Single Judge”, the Court further observed while dismissing the appeal.