Pankaj Purohit, J.
1. All these writ petitions involve the similar set of controversy and, therefore, all the writ petitions are being decided by this common judgment. But for the sake of convenience, the facts of Writ Petition No. 1387 of 2017 (S/S) Vinod Kumar vs. State of Uttarakhand and others are being considered.
2. The petitioner has filed the present writ petition seeking a direction for quashing the order dated 30.01.2013 issued by respondent no.4-Secretary, Krishi Utpadan Mandi Samiti, Gadarpur, District Udham Singh Nagar whereby a direction was made to recover a sum of Rs. 5,16,156/-from the petitioners for the reason that some excess payment has been made to the them while giving the benefit of Fifth and Sixth Pay Commission.
3. During the relevant period, the petitioners were posted as a Peon with respondent-Mandi Samiti, Gadarpur. A Fifth Pay Commission was pronounced and was implemented in the year 1996 with effect from 01.01.1996 and revised pay scale was provided to the employees of State Government as well as employees of the local bodies including the Krishi Utpadan Mandi Samiti to the extent a Government order was issued on 31.07.2002 by the erstwhile State of Uttar Pradesh and the aforesaid order was also adopted by the State of Uttarakhand and the same was implemented to the extent that the benefit of Fifth Pay Commission was extended to the employees of Krishi Utpadan Mandi Samiti. Subsequently, the order was issued and the salary of the employees of Krishi Utpadan Mandi Samiti was re-fixed including that of the petitioner in accordance with the recommendations of Fifth Pay Commission. Accordingly, the petitioner's pay was fixed on 04.10.2010 as Rs. 2650-3300-4,090/-on 04.10.2010. In the year 2006 the Sixth Pay Commission was pronounced and was implemented with effect from 01.01.2006 and accordingly, the pay scale of the petitioner was fixed as Rs. 5200-20200/-on 24.03.2011 and such benefit was extended to the petitioner. Accordingly, after re-fixation of the pay scale of the petitioner, the arrears of Fifth Pay Commission and Sixth Pay Commission was paid to the petitioner to the tune of Rs. 5,16,156/-but surprisingly, vide impugned order dated 30.01.2013 the petitioner was issued the notice whereby it has been stated that the petitioner including other petitioners were given excess payment towards arrears of their salary and, therefore, the arrears which was given to the petitioner was required to be paid back by the petitioner to the Mandi Parishad and accordingly, a direction was made to the petitioner to inform as to how and in what manner the excess payment made to the petitioner may be recovered from him.
4. It is feeling aggrieved by the aforesaid recovery order the petitioner has approached this Court by filing the present writ petition with the aforesaid averments.
5. The respondent nos.2 to 5-Mandi Samiti appeared in writ petition and filed its counter affidavit wherein the respondents-Mandi Samiti has come up with the case that pursuant to the impugned notice dated 30.01.2013 the petitioner has given in writing on 04.10.2013 informing the respondents-Secretary, Krishi Utpadan Mandi Samiti that the amount which was due against the petitioner may be recovered from the N.S.C. which was going to be matured shortly in which Rs. 4,90,470/-were there and further the balance amount of Rs. 25,681/-be accordingly recovered from the arrears due to the petitioner. It is submitted by the learned counsel for the respondent nos.2 to 5, that pursuant to the aforesaid writing, in the year 2013 itself, the amount due against the petitioner was already recovered. It is further submitted by the respondent nos.2 to 5 in its counter affidavit that recommendations of Fifth and Sixth Pay Commission was to be made applicable to the employees of Krishi Utpadan Vipran Board and Marketing Committees on 02.06.2010 and 17.09.2010 and due to this reason the excess payment was made to the petitioner as has been stated in the previous portion of this judgment. The Fifth pay Commission recommendations was introduced with effect from 01.01.1996 and Sixth Pay Commission with effect from 01.01.2006. Due to this reason huge difference has come up which resulted into excess payment to the petitioner and accordingly, the same was directed to be recovered and same has been recovered from the petitioner.
6. In connected Writ Petition No. 1101 of 2017 (S/S) Lal Chand vs. State of Uttarakhand and others, a rejoinder affidavit has been filed by the petitioner of that writ petition and it has been admitted by the petitioner that the amount under recovery has already been recovered from the petitioner but it has been submitted that for excess payment, the petitioner was not instrumental; neither it is a case of any of the respondents that the petitioner had played fraud and misrepresentation to get the refixation of the salary to receive payment with effect from 01.01.1996 and 01.01.2006.
7. Learned counsel for the petitioner strenuously argued and submitted that since the petitioners are low paid employees of the Krishi Utpadan Mandi Samiti being peon with the respondent-Mandi Parishad and further when there was no connection of the petitioner in fixation of the pay with effect from 01.01.1996 to 01.01.2006, the excess payment was made by the respondent-Krishi Utpadan Mandi Samiti and, therefore, the same could not be recovered from the petitioner in view of the law laid down in a judgment passed by the Hon'ble Apex Court in the case of State of Punjab and others vs. Rafiq Masih (White Washer) and Others (2015) 4 SCC 334. Paragraph 18 of the judgment is quoted hereinbelow:-
"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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and IV service (or Group C and Group D services).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) .............................................................................
(iv) .............................................................................
(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."
8. It is also brought to the notice of this Court that except petitioner-Govind Ballabh Pandey and Kartar Singh of WPSS No. 1388 and 1389 of 2017 respectively, other petitioners are retired from service and petitioner Vinod Kumar of WPSS No. 1387 of 2017 expired during pendency of the writ petition.
9. Learned counsel for the respondent nos.2 to 5 does not dispute the principle enunciated in the case of Rafiq Masih (Supra) and having considered the facts of the case and submission in the light of the principle as laid down in the Rafiq Masih case, this Court is of the opinion that the recovery which was directed to be made from the petitioner was illegal and the same could not have been made from the petitioner, who is a low paid employee, retired employee and working as peon with the respondent/Mandi Parishad. In this view of the matter, the writ petitions deserve to be allowed. Accordingly, the writ petitions are allowed.
10. Since the notice dated 30.01.2013 has already be acted upon, there is no point in quashing the same but in order to arrive at equity with the parties, since the recovery has wrongly been made from the petitioners, in view to the law as discussed above, it is directed that the respondent nos.3 & 4-Mandi Parishad shall refund the amount taken from the petitioners immediately within a period of not more than eight weeks from today alongwith interest accrued thereon at the rate of 6% per annum. (In case of petitioner-Vinod Kumar to his LRs, brought on record, in Writ Petition after petitioner's death).
11. With these observations, these writ petitions having similar controversy are stand allowed.
