Allahabad High Court
Jairam vs State Of U P And 3 Others on 3 August, 2021
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 5
Case :- WRIT - A No. - 6946 of 2021
Petitioner :- Jairam
Respondent :- State Of U P And 3 Others
Counsel for Petitioner :- Kailash Prakash Pandey
Counsel for Respondent :- C.S.C.
Hon'ble Saral Srivastava,J.
Heard learned counsel for the petitioner and the learned Standing Counsel for the State-respondents.
The petitioner, by means of this writ petition, has assailed the order dated 31st December, 2020 by which an amount of Rs. 7,73,632/- has been deducted from the pensionary benefits of the petitioner.
This Court on 19.7.2021 has passed the following order:
"Heard learned counsel for the petitioner and Ms. Monika Arya, learned Standing Counsel for the respondents.
The petitioner by means of the present writ petition has assailed the order dated 31.12.2020 passed by Superintendent of Police, Azamgarh whereby Rs.7,73,632/- has been deducted from the gratuity of the petitioner.
It is contended by the learned counsel for the petitioner that neither any notice nor any opportunity of hearing was afforded to the petitioner by the respondent-authority before passing the impugned order. He submits that petitioner has not furnished any undertaking at the time of fixation of pay that in case excess amount is paid to the petitioner, the petitioner shall repay the same. In this respect, necessary averment has been made in paragraph 27 of the writ petition. Thus, he submits that present case is squarely covered by the judgement of this Court in the case of (Sarojbala Pandey Vs. State of U.P. and 3 Others) in Writ-A No.10699 of 2020.
Learned Standing Counsel prays for and is granted two weeks time to seek instructions in the matter as regards the averment made in paragraph 27 of the writ petition and further apprise the Court as to whether present case is squarely covered by the judgement of this Court in the case of Sarojbala Pandey (supra).
Put up as fresh on 03.08.2021."
Sri R.S.Umrao, learned Standing Counsel, upon instruction, submits that the petitioner has furnished an undertaking on 12.2.2020, copy of the instruction as well as the undertaking of the petitioner are taken on record and accordingly, he submits that the recovery has correctly been made from the petitioner.
Learned counsel for the petitioner submits that the undertaking, which has been placed before this Court, is dated 8.2.2020 (annexure-1 to the writ petition). He further submits that the undertaking (annexure-1) reveals that the space in Annexure-1 has not been filled in and only signature has been obtained from the petitioner. He further submits that the recovery, which has sought to be recovered from the petitioner is prior to the date of undertaking and the petitioner was forced to sign the undertaking. He, accordingly, submits that the controversy is squarely covered by a decision of the Hon'ble Apex Court in the case of State of Punjab and others Vs. Rafiq Masih, 2015 (4) SCC334 .
Be that as it may, this Court in the case of Sarojbala Pandey Vs. State of U.P. and others (Writ A No.10690 of 2020) decided on 7.1.2021 after considering the judgment of the Hon'ble Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (supra) has held that the judgment in the case of Jagdev Singh(supra) has clarified as to when the excess amount paid can be recovered.
Paragraph-12 of the said judgment is extracted here-in-below:
"12. Careful perusal of aforesaid judgment rendered by the Hon'ble Apex Court clearly suggests that principle laid down by the Hon'ble Apex Court in Rafiq Masih's case that recovery from employee belonging to Class-III and Class-IV service (or Group C and Group D service) would be impermissible in law, still holds good. In the subsequent judgment rendered by the Hon'ble Apex Court in High Court of Punjab & haryana and Others Vs Jagdev Singh's case (supra), it has only clarified that recovery from those retired employees or who are due to retire within one year, of the order of recovery shall be permissible who had given undertaking at the time of taking benefit that any payment, if found in excess would be liable to adjusted."
In the instant case, it is not in dispute that the petitioner has retired on 29.2.2020 and the amount which is sought to be recovered from the petitioner is prior to the date of undertaking. Further in paragraph-31 of the writ petition the petitioner has asserted that he has not been afforded any opportunity of hearing.
From the perusal of the undertaking it is evident that the undertaking is subsequent to the date of grant of benefit which shows that the signature has been obtained with an intention to make the recovery from the petitioner in the light of the judgment in the case of Jagdev Singh (supra).
This Court is of the view that such an undertaking, which has been obtained subsequent to the date of grant of benefit, cannot be relied upon to make the recovery of excess payment from the petitioner.
For the reasons given above, this Court finds that the impugned order is not sustainable in the eye of law and is, accordingly, set aside. The respondent-authority is directed to pay the amount of Rs. 7,73,632/- to the petitioner within a period of two months from the date a copy of this order downloaded from the official website of the Allahabad High Court duly certified by the learned counsel for the petitioner is presented before the authority concerned.
With the aforesaid observations/directions, the writ petition stands finally disposed of.
Order Date :- 3.8.2021
SKM
