Allahabad High Court
Ramesh Singh vs The State Of U.P. And 2 Others on 2 May, 2023
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 38
Case :- WRIT - A No. - 7613 of 2023
Petitioner :- Ramesh Singh
Respondent :- The State Of U.P. And 2 Others
Counsel for Petitioner :- Awadhesh Prasad,Radhey Shyam Singh
Counsel for Respondent :- C.S.C
Hon'ble Saurabh Srivastava,J.
1. Heard Radhey Shyam Singh, learned counsels for the petitioner and Sri Rajesh Kumar Tiwari, learned Additional Chief Standing counsel for the State respondents.
2. Present petition has been filed for the following reliefs:
"(i) Issue, a writ, order, rule or direction, in the nature of certiorari, quashing the impugned orders of the respondent no.3 dated 24.05.2022 and 08.06.2022 respectively (Annexure 4 and 5 to the Writ Petition).
(ii) Issue, a writ, order, rule or direction, in the nature of restraining the respondent from recovery of any amount in pursuant to the impugned orders dated 24.05.2022 and 08.06.2022, from the petitioner."
3. It is the case of the petitioner that the petitioner who had been working as Head Constable in the Department of Police, U.P., retired on 30.09.2021 after attaining the age of superannuation.
4. Vide order dated 21.03.2022, the respondent no.3 directed to reduce/amend the pay-scale of the petitioner for the period from 15.08.2007 to 01.07.2021. Being aggrieved with the said order, the petitioner preferred Writ A No.5490 of 2022 wherein a coordinate Bench of this Court vide order dated 13.04.2022 observed that the case of the petitioner is covered with the judgment passed by Hon'ble the Apex Court in the case of State of Punjab and others Vs. Rafiq Masih: [2015 (4) SCC 334] and directed to complete the proceedings within ten weeks.
5. Despite the order dated 13.04.2022, the respondent no.3 passed the orders dated 24.05.2022 and 08.06.2022 to recover the amount to the tune of Rs.1,90,200/- from the post retiral dues of the petitioner.
6. Learned counsel for the petitioner submits that the aforesaid orders of the respondent authority is in violation of principles of natural justice as no notice or opportunity of hearing was ever afforded to the petitioner and it is also well settled that amount once paid cannot be recovered unless the same was obtained by playing fraud, concealment or misrepresentation. He also relied upon the judgements passed by Hon'ble Apex Court as well as this Court in Syed Abdul Qadir & others Vs. State of Bihar and others [(2009) 3 SCC 475], Rafiq Masih (supra), Thomas Daniel Vs. State of Kerala and others [Live Law (SC) 438) and Brijendra Kumar Tripathi and others Vs. State of U.P. and others [2019 (4) ADJ 690 (LB)].
7. Learned Standing counsel vehemently opposed the submission, but could not dispute the facts so argued by the learned counsel for the petitioner as well as legal submission.
8. I have considered the rival submissions advanced by the learned counsel for the parties and perused the record as well as impugned order. Facts of the case are undisputed. Hon'ble Apex Court in the case of Rafiq Masih (supra) while dealing with such dispute, had framed following guidelines:-
"12. 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."
9. Case of the petitioner is squarely covered with the judgment of Rafiq Masih (supra) and as such, the petitioner is not responsible for receiving excess payment as alleged by the respondents.
10. In view of the aforementioned facts and circumstances, the impugned orders dated 24.05.2022 and 08.06.2022 passed by the respondent no.3 to recover the amount to the tune of Rs.1,90,200/- from the petitioner is quashed and set aside. In case, excess amount has been recovered from the petitioner, the same shall be refunded within a period of two months from the date of production of a certified copy of this order before him.
11. The writ petition stands allowed accordingly.
Order Date :- 2.5.2023
Vivek Kr.
