Allahabad High Court
Jagdish Prasad vs State Of U.P. And 3 Others on 5 January, 2021
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- WRIT - A No. - 13396 of 2020
Petitioner :- Jagdish Prasad
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Umesh Kumar Gupta,Satyavrat Sahai,Sunil Dutt Kautilya
Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioner was initially appointed as a Collection Amin and his services were regularized after orders passed by this Court and the matter travelled upto the Supreme Court. Petitioner retired in the year 2006 and has been getting pension ever since then. However, vide order impugned dated 30.9.2020 petitioner's pension has been unilaterally reduced and a further direction has been issued to recover excess amount paid to the petitioner as the amount was not due.
Learned counsel for the petitioner places reliance upon the judgment of the Apex Court in the case of State of Punjab vs. Rafiq Masih (White Washer) reported in 2015 (4) SCC 334 to submit that even if wrong fixation has been made no recovery can be made from the petitioner and that respondents could not have reduced petitioner's pension particularly when no opportunity of hearing has been afforded. It is also contended that in the previous litigation petitioner's entitlement was admitted by the respondents before this Court.
Paragraph 12 of the judgement in the case of State of Punjab vs. Rafiq Masih (supra) is relevant and is reproduced hereinafter:-
"12. 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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) from employees, when the excess payment has been made for a period in excess of five years, before the order of is issued.
(iv) in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that 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."
From a perusal of the order impugned it is apparent that no opportunity of hearing has been given to the petitioner.
Admittedly, the order carrying civil consequences could not have been passed without affording opportunity of hearing to the person concerned. Order impugned is clearly violative of principles of natural justice.
In view of the above, writ petition succeeds and is allowed. Order dated 30.09.2020 stands quashed. Liberty, however, stands reserved to the respondents to proceed afresh, keeping in view the above observation as also the principles laid down in the case of State of Punjab vs. Rafiq Masih (supra). It goes without saying that the previous adjudications made by this Court with regard to petitioner's entitlement would also be taken note of while taking any fresh decision.
Order Date :- 5.1.2021
Ashok Kr.
