Allahabad High Court
Usha Saxena vs State Of U P And 2 Others on 3 March, 2023
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- WRIT - A No. - 213 of 2023
Petitioner :- Usha Saxena
Respondent :- State Of U P And 2 Others
Counsel for Petitioner :- Prashant Vardhan,Sharad Kumar
Counsel for Respondent :- C.S.C.
Hon'ble Jaspreet Singh,J.
Heard learned counsel for the petitioner and Ms. Neetu Singh, learned Standing Counsel for the State-respondents.
By means of the instant petition, the petitioner prays for the following reliefs which read as under:-
"(a) Issue a suitable writ, order or direction commanding the respondent authorities not to recover the amount of Rs.3,46,240/- from the retiral dues of Late husband of the petitioner due to the impugned salary fixation.
(b) Issue a suitable writ, order or direction commanding the respondent authorities to pay retiral dues of the late husband of the petitioner to the petitioner as per the last drawn salary by the late husband of the petitioner at the time of his retirement."
Fact of the case is that the petitioner's husband late Ashok Kumar Saxena was appointed on the post of Lekhpal on 12.03.1982 in the office of Sub Divisional Magistrate, Sadar, District Bareilly. He retired from service on 30.06.2022 from the post of Revenue Inspector and died on 27.06.2022.
The husband of the petitioner was promoted as Revenue Inspector in the office of respondent no.3 and retired on 30.06.2022. At the time of retirement, late Ashok Kumar Saxena completed all the formalities required for the grant of his retiral due, his pension and other retiral dues were fixed accordingly and no objection was ever raised by the respondents in respect of his grant of retiral dues. No payment of retiral dues was made to late Ashok Kumar Saxena and he died on 27.07.2022 due to liver cirrhosis disease. Thereafter when the petitioner approached the office of respondents for grant of retiral dues of late Ashok Kumar Saxena, she was orally informed by the respondents that the salary of the petitioner's husband was wrongly fixed on 01.04.2006 therefore a recovery is to be made from the retiral dues of his husband.
Learned counsel for the petitioner submits that in view of the judgment of the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334, the recovery of the amount cannot be made. He further submitted that the petitioner's husband has not committed fraud nor he misrepresented the fact before the respondents in fixation of salary, therefore, the recovery proceeding initiated against the petitioner is not justifiable.
Learned counsel appearing for the respondents states that the grievance of the petitioner shall be examined by the authority concerned afresh in accordance with law.
Considering the hardship which may be caused to the petitioner of recovery is affected from such employee, the Hon'ble Supreme Court in the case of Rafiq Masih (supra) has been pleased to lay down following principles in para 18:-
"18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, 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."
Admittedly, there does not appear to be any case of misrepresentation or fraud on the part of the petitioner in the matter.
In such circumstances, the matter is remitted back to the authority concerned to examine the matter, afresh, and pass appropriate order, keeping in view the principles laid down by the Apex Court in the case of Rafiq Masih (supra), within a period of three months from the date of presentation of an authenticated copy of this order. Whatever retiral dues are found payable shall be released to the petitioner within a further period of two months.
As regards, the claim of interest on the delay dues, it would be open to the petitioner to raise such grievance before the appropriate forum.
Writ petition is accordingly disposed of.
Order Date :- 3.3.2023
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