Allahabad High Court
Smt. Shakuntala Singh W/O Shiv Ram ... vs State Of U.P. Thru Principal ... on 4 January, 2023
Bench: Brij Raj Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 20
Case :- WRIT - A No. - 3182 of 2011
Petitioner :- Smt. Shakuntala Singh W/O Shiv Ram Singh
Respondent :- State Of U.P. Thru Principal Secretary Labour And Ors.
Counsel for Petitioner :- Sanjeev Pandey
Counsel for Respondent :- C.S.C.
Hon'ble Brij Raj Singh,J.
Heard Sri Sanjeev Pandey, learned counsel for the petitioner, Sri Savitra Vardhan Singh, learned Additional Chief Standing Counsel for the State and perused the record.
By means of present petition, the petitioner has prayed the following main relief:-
"Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 03.06.2009 and 01.10.2009 passed by opposite party no.3 and impugned order 27.10.2009 passed by opposite party no.4 contained in Annexure No. 1,2 and 3 respectively to this writ petition.
(ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite party to pay the recovered amount which has been recovery in compliance of the impugned order."
It is submitted by learned counsel for the petitioner that the petitioner had retired from service on 31.10.2009 and the impugned recovery orders were passed on 01.10.2009 and 27.10.2009. It has also been submitted by learned counsel for the petitioner that after retirement, the excess amount has been recovered from the retiral dues of the petitioner.He has placed reliance on the judgement of the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih ( White Washer) and others, (2015) 4 SCC 334 and also placed reliance on the judgments passed by this Court in Special Appeal Defective No.235 of 2022 (State of U.P. and others Vs. Jagdish Prasad Shukla decided on 16.11.2022 and Writ-A No.4763 of 2011 (Gokul Prasad Vs. State of U.P. and others) decided on 03.11.2022.
It has been further submitted by the learned counsel for the petitioner that the petitioner has not committed any misrepresentation or fraud and the amount has been paid to the petitioner by the order of the competent authority.
Sri Savitra Vardhan Singh, learned Additional Chief Standing Counsel has submitted that since the excess amount was paid to the petitioner, therefore, recovery was made. It is well within the domain of the authority that is why the recovery orders were passed.
I have gone through the record .
The Hon'ble the Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih ( White Washer) and others (supra) has held as under:-
"18. it is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payment have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, 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."
It is admitted on record that the petitioner has not committed any misrepresentation or any fraud and the amount was paid to her by the order of competent authority. She retired from service on 31.10.2009 and the impugned order was passed just before three days of her retirement and the excess amount has been recovered from the retiral dues of the petitioner as such the impugned orders cannot be survived in the eye of law.
In view of the above, the writ petition is allowed and the impugned order dated 01.10.2009 passed by opposite party no.3/ Deputy Labour Commissioner, District Faizabad and the impugned order dated 27.10.2009 passed by opposite party no.4/ Assistant Labour Commissioner, District Faizabad are set aside. The excess amount which was recovered from the retiral dues of the petitioner shall be paid by the authority concerned within three months from today.
Order Date :- 4.1.2023
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