Allahabad High Court
State Of U.P. Thru. Secy. Deptt. ... vs Smt. Laxmi Devi on 4 April, 2023
Bench: Devendra Kumar Upadhyaya, Om Prakash Shukla
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 1
Case :- SPECIAL APPEAL DEFECTIVE No. - 173 of 2023
Appellant :- State Of U.P. Thru. Secy. Deptt. Food Safety And Civil Supplies, Lko. And 2 Others
Respondent :- Smt. Laxmi Devi
Counsel for Appellant :- C.S.C.
Counsel for Respondent :- Jitendra Singh
Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Om Prakash Shukla,J.
C.M.A. No.1 of 2023 (Application for condonation of delay)
Heard learned State counsel representing the appellant-State authorities and Shri Jitendra Singh, learned Counsel representing the sole-respondent.
Having regard to the averments made in the application seeking condonation of delay, we are satisfied that delay has satisfactorily been explained.
Accordingly, the application is allowed and delay in filing the special appeal is hereby condoned.
Order on Appeal
This special appeal has been filed under Chapter VIII, Rule 5 of the Rules of the Court challenging the judgment and order dated 14.11.2022, passed by learned Single Judge whereby Writ A No.6761 of 2015, filed by the respondent-petitioner has been allowed and the appellants-State authorities have been directed to refund the amount, which was deducted from already paid family pension to her.
Submission of the learned Counsel for the appellants is that husband of the respondent-petitioner was employed as a Class-III employee with the State Government, who retired on 31.05.1987. He was paid pension according to his entitlement, however, he died on 07.05.2008 and while fixing the family pension given to the respondent-petitioner, certain mistake was committed, inasmuch as though under the Rules, family pension is payable at a reduced rates of 30% of the pension being drawn by the employee concerned, however, the respondent-petitioner was paid family pension equal to the amount of pension, which was paid to and drawn by her husband.
In view of the aforesaid, the submission is that the wrongly paid amount was recovered from the respondent-petitioner, however, learned Single Judge has not appreciated the aforesaid facts and circumstances which renders the judgment and order passed by the learned Single Judge vitiated.
On the other hand, Shri Jitendra Singh, learned counsel for the respondent-petitioner has submitted that if any amount has been paid to the respondent-petitioner without there being any mistake on her part or without there being any misrepresentation on her part, any deduction from the amount paid will not be permissible in view of the judgment of Hon'ble Supreme Court in the case of State of Punjab & others Vs. Rafiq Masih & others, (2015) 4 SCC 334. The submission on behalf of respondent-petitioner, thus, is that the special appeal is liable to be dismissed at this threshold.
We have considered the rival submissions advanced by learned counsel representing the respective parties and also gone through the records available before us in the instant special appeal.
It is settled principle of law as enunciated by Hon'ble the Supreme Court in the case of Rafiq Masih (supra) that in case any amount is paid without any mistake on the part of the employee concerned, specially if he or she is a class IV or Class III employee, responsibility of such mistake cannot be saddled with the employee and in such an eventuality any order of recovery or deduction will not be permissible.
Though the aforesaid judgment by Hon'ble Supreme Court has been rendered in a fact situation where certain deductions/recoveries were ordered to be made from the pay of the employee concerned, however, we can safely employ the said principle laid down in the matter of payment of pension or family pension as well.
The respondent -petitioner in this case is 97 years old lady and accordingly, in the facts of the present case, in our considered opinion, she cannot be saddled with any responsibility for any mistake committed by the appellant-State authorities while fixing family pension on the death of her husband.
We have been informed that after making deductions, the family pension to the respondent-petitioner w.e.f. 18.05.2016 is being paid at the reduced rate.
The mistake committed by State authorities is permissible to be corrected, however, any deduction made prior to 18.05.2016 from the family pension already paid to the respondent-petitioner, in our opinion, will not be permissible in view of the law laid down by Hon'ble the Supreme Court in the case of Rafiq Masih (supra).
Accordingly, we find ourselves in complete agreement with the judgment and order passed by the learned Single Judge dated 14.11.2022, which is under appeal before us. The special appeal is, thus, hereby dismissed.
Order Date :- 4.4.2023
Anand Sri./-
