Allahabad High Court
Sandeep Kumar Verma vs State Of U.P.Thru.Prin.Secy. ... on 19 March, 2021
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- SERVICE SINGLE No. - 7847 of 2021
Petitioner :- Sandeep Kumar Verma
Respondent :- State Of U.P.Thru.Prin.Secy. Ayush Section & Ors.
Counsel for Petitioner :- Aditya Vikram Shahi,Ankit Kumar Yadav,Vishnu Narayan Sharma
Counsel for Respondent :- C.S.C.
Hon'ble Irshad Ali,J.
1. Heard learned counsel for petitioner, learned Standing Counsel for the State.
2. Petitioner has approached this Court challenging the orders dated 21.9.2020 and 16.7.2020 whereby recovery of certain amount has been directed against his father after his retirement from the post. The petitioner's father was granted appointment on 4.3.1991 on Class-III post and while in service, he died on 7.5.2020.
3. Submission of learned counsel for the petitioner is that the petitioner requested for the payment of post retiral dues and in spite of paying the same, the impugned orders dated 21.9.2020 and 16.7.2020 have been passed, whereby recovery of certain amount has been directed from the petitioner. He submits that the impugned order has been passed without issuing notice and in violation of principles of natural justice. He submits that the recovery of certain amount from the petitioner is wholly illegal and without any rational basis.
4. Learned counsel for petitioner places reliance upon the judgment of Supreme Court in case of State of Punjab and Ors. Vs. Rafiq Masih (White Washerman) reported in (2015) 4 SCC page.334, paragraph-18 of which provides:-
"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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery 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 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."
5. Since, impugned order has been passed without giving any opportunity of hearing to the petitioner, hence, the same is liable to be quashed and writ petition deserves to be allowed.
6. In view thereof, the impugned order dated 28.8.2019 is set aside with liberty to respondent no. 2 & 3 to pass fresh order with regard to re-fixing retiral dues payable to the petitioner, after giving appropriate opportunity of hearing to the petitioner, within a period of six weeks from the date a certified copy of this order is placed before it.
7. The recovery, however, shall not be made from the petitioner keeping in view of the Supreme Court judgment of Rafiq Masih (supra) case before passing a fresh order after due opportunity.
8. It is further directed that the remaining admitted post retiral dues of the petitioner shall be paid within a period of four weeks from the date a certified copy of this order is placed before it.
9. With the aforesaid, the writ petition is allowed.
Order Date :- 19.3.2021
Gautam
