Allahabad High Court
Gokul Prasad vs State Of U.P.Thru.Prin.Secy. ... on 3 November, 2022
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- WRIT - A No. - 4763 of 2011
Petitioner :- Gokul Prasad
Respondent :- State Of U.P.Thru.Prin.Secy. Irrigation And Others
Counsel for Petitioner :- Sanjay Kumar Verma
Counsel for Respondent :- C.S.C.
Hon'ble Saurabh Lavania,J.
Heard learned counsel for the parties.
By means of this petition, the petitioner has challenged the order dated 01.12.2008, whereby, the recovery has been ordered from the monthly pension of the petitioner, who at the time of providing promotional pay-scale was holding the post of driver (Group-C post). The total amount indicated in the order impugned is Rs. 65,327/-. This order says that Rs. 26,197/- would be recovered monthly from the pension of the petitioner.
The main prayer(s) sought in the writ petition are as under:-
"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 01.12.2008 passed by opposite party No. 2 contained in as Annexure No. 1 to this petition.
(ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to refund the amount already recovered from the retiral benefits of the petitioner."
It is stated by the learned counsel appearing on behalf of the petitioner that the impugned order is unsustainable in view of law laid down by the Hon'ble Apex Court in the judgment dated 02.05.2022 passed in Civil Appeal No. 7115 of 2010 (Thomas Daniel v. State of Kerala & Ors.).
It is further stated that the Hon'ble Apex Court while passing the judgment in the case of Thomas Daniel (supra) considered the earlier judgment(s) on the issue of recovery of excess amount paid to an employee.
He further says that the Hon'ble Apex Court in the case of High Court of Punjab & Haryana v. Jagdev Singh, (2016) 14 SCC 267:(2017) 2 SCC (L&S) 789 has held as under:-
"10. In State of Punjab v. Rafiq Masih [State of Punjab v. Rafiq Masih, (2015) 4 SCC 334 : (2015) 2 SCC (Civ) 608 : (2015) 2 SCC (L&S) 33] this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law: (SCC pp. 334-35)
(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.
(emphasis supplied)"
Considering the proposition settled by the Hon'ble Apex Court in the judgment(s) aforesaid as also that the petitioner, who was holding a Group-C post at the time of providing the amount in issue, was retired prior to passing of impugned order, this Court is of the view that the recovery of amount in issue from the petitioner is unsustainable and as such, the indulgence is required in the matter. Accordingly, the present writ petition for the relief(s) sought is allowed. Opposite parties are directed to pay/refund the amount, already recovered, to the petitioner within a period of three months from the date of production of certified copy of this order.
Order Date :- 3.11.2022
Arun/-
