Prem Singh vs State Of Uttar Pradesh & Another

Sharad Kumar Sharma, J

The petitioner has challenged the orders dated 19.12.2005, 13.01.2016 and 29.03.2016, as passed by the respondent no. 2, by virtue of which the respondent no. 2, had sought for a recovery of a sum of Rs.1,82,643/- from the petitioner on the ground that he has attained the age of superannuation, which was 60 years and even thereafter he had persuaded the respondent to pay the amount of wages, though he retired even much prior to the passing of the award of reinstatement by the Labour Court on 05.09.2011. Hence, the payment which has been received by the petitioner was illegal also was obtained by way of concealment of facts, and that the petitioner was a recipient of an old age pension, on which the reliance has been placed by the learned counsel for the respondent by placing on record a schedule, which shows the head under which payment is made and the amount of payment made to the petitioner under, "Pension Yojana Vradhavastha Pensionary Vivran".

As far as the payment of the old age pensionary benefits is concerned, the said old age pension is being paid to the petitioner under the welfare scheme floated by the State Government and it has got no relation, so far it relates to the said payment made to petitioner in pursuance to the award, which was to be made by the employer to the employee, it was altogether an independent payment paid to the petitioner as an old age pension under the Welfare Schemes, floated by the State Government.

The argument, which has been extended by the learned counsel for the petitioner, is that as far as the order of reinstatement is concerned, which was passed by the Labour Court on 05.09.2016 directing the petitioner to be reinstated without back wages, in fact, he was not reinstated despite of the fact that the award on being challenged by the State of Uttar Pradesh in Writ Petition No. 971 of 2013 'State of Uttar Pradesh & Others vs. Prem' had attained finality by the judgment dated 21.03.2014 and ultimately by dismissal of the SLP by the Hon'ble Apex Court on 08.05.2015, but when the petitioner was not reinstated, the petitioner had preferred a proceeding under Section 6(H)(1) of U.P. Industrial Disputes Act, 1947, for execution of the award.

In the meantime, the respondent had remitted an amount of Rs.1,82,643/- after the orders being passed on 23.11.2015. The contention of the learned counsel for the respondent is that the said amount was received by the petitioner by concealment of the fact on the ground that he was also a recipient of an old age pension from the State Government and, hence, he was bound to refund back the amount of Rs.1,82,643/-, which is being contended by the respondent to have been obtained by the petitioner by concealment of the aforesaid fact that he was the beneficiary of the welfare scheme floated by the State Government.

This argument as extended by respondent's counsel Mrs. Beena Pandey, is not accepted by this court for the reason being that the payments, which are being made to the petitioner under the old age scheme by the State Government has got no relationship so far it relates to the payment of wages as a consequence of master servant relation, which an employee is entitled to receive under the master and servant relationship. Hence, it cannot be said that merely because that he was the recipient of an old age pension and this fact of receiving old age pension since was not disclosed to the respondent, he had wrongfully obtained a sum of Rs.1,82,643/- , which has to be refunded by the petitioner or was to be recovered from him.

In order to defend an action of the respondent taken by the impugned order directing to recover the amount. The argument of learned counsel for the petitioner is that since under the rules there is no age of superannuation specified for the daily wagers, hence, it cannot be said that the amount which was paid even after the retirement of the petitioner was wrongfully paid to him because he was an abled person and he could have discharge his duties had he been reinstated timely in pursuance to the award dated 15.09.2011.

The analogy as argued by the learned counsel for the petitioner pertaining to an age of retirement of petitioner in absence of rules, being for an indefinite period is not acceptable, there has to be some rational approach and, if the other employees, as per the rules, which are applicable in the department are superannuating at the age of 60 years, it would be deemed that the same age of retirement should logically be treated as to be an age of retirement for the petitioner also, but as far as the remittance of an amount of Rs.1,82,643/- is concerned, this Court is not agreeing with the argument of the learned counsel for the petitioner that the said amount was obtained by the petitioner by concealment of facts or plying fraud, because the reason for concealment as already stated above has no relationship with the employment of the petitioner.

Consequently, the impugned orders are quashed, only so far it relates to the recovery of the amount already paid to the petitioner by the respondents.

The writ petition thus succeeds only to that limited extent.