Allahabad High Court
Jata Shankar Chaubey And Others vs The State Of U.P Thru Principal ... on 20 May, 2022
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 6
Case :- WRIT - A No. - 608 of 2011
Petitioner :- Jata Shankar Chaubey And Others
Respondent :- The State Of U.P Thru Principal Secy. And Others
Counsel for Petitioner :- Alok Yadav
Counsel for Respondent :- C.S.C
Hon'ble Suneet Kumar,J.
Heard learned counsel for the parties.
Learned counsel for the petitioners, on instructions, submits that the petitioners are not interested to press the prayer no. (ii) of the writ petition.
Learned counsel for the petitioners, at the out set, submits that petitioners do not desire to file rejoinder affidavit to the counter affidavit.
Petitioners were working as Sub-Inspector in Intelligence Department. Petitioners were granted protsahan bhatta (appreciation allowance) of Rs. 2000/- pursuant to Government Order dated 28 November 2007.
It appears that the amount of protsahan bhatta (appreciation allowance) by the impugned order dated 20 October 2010, passed by the fourth respondent, Finance Controller Establishment, U.P. Police Head Quarter, Allahabad, was reduced at Rs. 1000/- and the excess amount paid to the petitioners since 2007 to the date of passing of the impugned was directed to be recovered. The impugned order came to be challenged in the instant writ petition and this Court vide order dated 23 February 2011, stayed the recovery. The order reads thus:
"Supplementary affidavit filed today is taken on record.
Heard learned counsel for the petitioners as well as learned Standing Counsel.
It is submitted by the learned counsel for the petitioners that the petitioners were awarded the Protsahan Bhatta (Appreciation Allowances) @ Rs. 2,000/- per month in pursuance of the Government Order dated 28th of November, 2007.
The petitioner had not made any misrepresentation or played fraud in getting the Protsahan Bhatta (Appreciation Allowances). It is the department itself which took a decision that the petitioners are entitled to get Protsahan Bhatta (Appreciation Allowances) and subsequently on some audit objection decided that the petitioner were wrongly paid Protsahan Bhatta (Appreciation Allowances) @ Rs. 2,000/- per month and they were entitled to get the Protsahan Bhatta (Appreciation Allowances) @ Rs. 1,000/- per month, therefore, the excess amount paid to the petitioners shall be recovered from the petitioners.
The learned counsel for the petitioners submits that by way of supplementary affidavit, it has been stated that the recovery is being made from the salary of the petitioners on the basis of Audit Report dated 01.4.2010.
Learned counsel for the petitioners in support of his contention has placed reliance upon a judgment passed by Division Bench of this Court in the case of Ram Murti Singh Vs. State of U.P. and Others reported in 2006 (3) U.P.L.V.E.C. 2415.
Learned Standing Counsel is directed to file counter affidavit within six weeks.
List thereafter.
Meanwhile, no recovery of the alleged excess amount shall be made from the petitioners."
It is submitted by learned counsel for the petitioners that after passing of the impugned order petitioners are receiving Rs. 1000/- towards appreciation allowance. The petitioners confine their prayer to the recovery of excess amount.
Learned Standing Counsel does not dispute the facts. On specific query, learned Standing Counsel submits that there was no fraud or misrepresentation committed by the petitioners in awarding, computing and drawing the protsahan bhatta.
In the circumstances, having regard to the decision rendered in Ram Murti Singh Versus State of U.P. [(2006) 3 UPLBEC 2415], State of Punjab v. Rafiq Masih [(2015) 4 SCC 334] and recently, the Supreme Court in Thomas Daniel Versus State of Kerala, (Civil Appeal No. 7115 of 2010) decided on 2 May 2022, observed and held as follows:
"Such relief, restraining recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery."
Learned Standing Counsel does not dispute the legal proposition.
Having regard to the facts and circumstances of the case, the writ petition is allowed in part. Consequently, the impugned order dated 20 October 2010, passed by the fourth respondent, Finance Controller Establishment, U.P. Police Head Quarter, Allahabad, set aside and quashed to the extent it seeks to recover the excess amount from the petitioner. Prayer no. (ii) is rejected.
No cost.
Order Date :- 20.5.2022
K.K. Maurya
