Allahabad High Court
Laxmi Devi vs State Of U.P. Thru. The Secy. ... on 14 November, 2022
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- WRIT - A No. - 6761 of 2015
Petitioner :- Laxmi Devi
Respondent :- State Of U.P. Thru. The Secy. Deptt. Of Food Safety And Ors.
Counsel for Petitioner :- Jitendra Singh
Counsel for Respondent :- C.S.C
Hon'ble Saurabh Lavania,J.
Heard learned counsel for the parties and perused the record.
The main prayer(s) sought in the writ petition are as under:-
" Issue a writ, order or direction in the nature of mandamus commanding the opposite parties not to make recovery from the family pension of the petitioner."
The petitioner is aggrieved by the arbitrary action of the opposite party no.3 reducing the family pension from Rs.17,820.00 to Rs. 7455.00 and making the recovery of Rs. 10.365.00 from the month of September,2015.
Learned counsel for the parties are agree that the case of the petitioner is squarely covered by the judgment of Division Bench dated 26.04.2017 passed in Special Appeal No.238 of 2017 (Smt. Ramkali Vs. U.P. Power Corporation Limited and others) which on reproduction reads as under:-
"Smt. Ramkali wife of late Pritam has preferred the present Special Appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 assailing the order dated 20.3.2017 passed by learned Single Judge of this Court in Writ A No.11601 of 2017 (Smt. Ramkali vs. U.P. Power Corporation Ltd through Chairman, Lucknow and 5 ors) wherein he has proceeded to dismiss the writ petition with following observations:-
"From the petition it appears that upon death of the husband of the petitioner, family pension was admitted to the petitioner but by order dated 18.5.2016 it was directed that the petitioner was being given family pension in excess of the amount that she was legally entitled. The order states that the petitioner was being paid pension of Rs. 3865/- but in fact she was entitled to pension only Rs. 3500/- and, therefore, the excess amount that was being paid, was directed to be recovered. The said order dated 18.5.2016 was not challenged by the petitioner earlier and the petitioner refunded the amount of Rs. 38744/-. Now a mandamus is being sought against the Department to return the amount recovered from the petitioner. If the petitioner was aggrieved by the recovery, she ought to have challenged that order, which was not done and the amount was allowed to be recovered. Now the prayer for the return of the amount so recovered, has no basis.
The writ petition is mis-conceived and it is, accordingly, dismissed."
The factual situation that is accepted before us is that husband of petitioner was working as Class-IV employee in the electricity department and he died leaving behind the petitioner as the legal heir to get family pension. Consequently the family pension of Rs.3865/- per month was fixed, which was reduced to Rs.3500/- per month and the recovery of the excess family pension paid to the petitioner was made by the order dated 18.6.2016. The said action of the respondents has been assailed by the petitioner-appellant in Writ A No.11601 of 2017 on the ground that the recovery of excess payment made towards the family pension was totally illegal and against the judgement of Hon'ble Apex Court in the case of State of Punjab and ors vs. Rafiq Masih (White Washer) and ors (2015) 4 SCC 334.
It has been claimed in the writ petition that the husband of the petitioner was working as Class-IV employee and after his demise the excess payment made towards family pension could not be recovered from the widow. The excess amount of family pension was paid by the department and no reason has been given in the order dated 18.5.2016 except that the payment was made by mistake of the department. No recovery can be made from the family pension or the pension in the matter of Class-III and IV employees. Learned Single Judge has dismissed the writ petition on the ground that the petitioner had not earlier challenged the order dated 18.5.2016 and she refunded the amount of Rs.38,744/-. If she was aggrieved by the recovery, she ought to have challenged that order, which was not done and the amount was allowed to be recovered.
Shri Ranjit Saxena, learned counsel for the petitioner-appellant has vehemently contended that the recovery of excess family pension paid to the petitioner was made by the order dated 18.6.2016 and the same was against the judgement of Hon'ble Supreme Court in State of Punjab vs. Rafiq Masih (supra) in which it was held that under no condition the recovery can be initiated against the retired employee/legal heir. The petitioner-appellant is an illiterate, old and infirm lady and the entire action has been taken by the respondents ex-parte, whereas in similar circumstances, learned Single Judge has intervened in the matter and the same benefit has been extended to various other similarly placed incumbents but in the present matter, learned Single Judge has dismissed the writ petition only on the ground that in the present matter, the amount in question has already been recovered and such view is totally contrary to the law and liable to be set aside.
We have proceeded to examine the record in question and find that in similar circumstances, one Smt. Omwati filed Writ A No.28420 of 2016 alleging that she was being given the family pension @ Rs.3865/- but later on, it was reduced to Rs.3500/-, and thereafter the amount paid in excess to Rs.3500/- was directed to be recovered from her. Learned Single Judge has allowed the writ petition on 13.1.2017 on the ground that in view of judgment in Rafiq Masih (supra), no such recovery can be made. However, she was not allowed to be paid the wrongly fixed pension and she was made entitled to receive pension which is permissible in law to her. Learned Single Judge has also allowed other Writ A Nos.28421 of 2016, 28422 of 2016, 28423 of 2016, 28425 of 2016, 28426 of 2016, 28427 of 2016, 28428 of 2016, and 38066 of 2016 on the same date i.e. 13.1.2017. Similar benefit has also been extended to other persons who have filed Writ A Nos.38066 of 2016 decided on 5.12.2016, 38081 of 2016 decided on 13.12.2016, 38340 of 2016 decided on 19.10.2016, 38342 of 2016 decided on 19.10.2016, 38567 OF 2016 decided on 8.9.2016, 38986 of 2016 decided on 19.9.2016.
Once this is the factual situation, that same benefit has been extended to other similarly situated persons, then we are of the considered opinion that in view of law laid down by Apex Court in Rafiq Masih's case (supra), the order dated 18.5.2016 by which the recovery of the excess family pension paid to the petitioner was made and the order passed by learned Single Judge cannot sustain and are accordingly set aside.The respondents are directed to release the amount in question, which has been recovered from the petitioner, within a period of two months' time from the date of production of certified copy of this order.
Consequently, the Special Appeal is allowed."
Considering the aforesaid as also including that the petitioner, who is getting family pension after the death of her husband late Sri Samerjeet Singh who was holding a Group-C post at the time of providing the amount in issue, 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 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 :- 14.11.2022
dk/
